The only saving grace is that it says the Court could still intervene to ask the Governor/President to end prolonged inaction over granting or withholding assent
The Supreme Court’s reply to the Presidential reference is a big letdown. The Constitution Bench’s task was to ascertain if the Court can prescribe timelines for Governors and the President to decide on a Bill that comes up before them, and whether the conduct of Governors and the President is justiciable. The response of a five-member Constitution Bench rules invalid the timelines that had been set by a two-member Bench of the Court in April, in response to a plea against gubernatorial delay and arbitrariness brought before it by the government of Tamil Nadu. And it greatly reduces the scope of judicial redress against arbitrariness by Governors and the President.
Also read: Presidential reference | Setting fixed timelines for Bill assent poses challenges: SC
It is for legal luminaries to dissect the technical validity of the Constitution Bench’s opinion. But there is no mistaking the political effect of the Constitution Bench’s reply to the 14 questions raised in the Presidential reference. It is to shift the already skewed balance of power in India’s federal polity further in favour of the Centre, and to make the office of the Governor an overt political tool in the hands of the political dispensation at the Centre, to be wielded against state governments run by parties of the Opposition. The Constitution Bench has stripped state governments of legal recourse against arbitrary denial of assent by the Governor or President for Bills passed by their legislative arms.
The only saving grace in the response to the presidential reference is that it says the Court could still intervene to ask the Governor/President to end prolonged inaction over granting or withholding assent.
When a Bill passed by the legislature is presented to the Governor for his assent, he has three options: he can give his assent, he can send it back to the legislature with his comments for its reconsideration, or he can refer it to the President for the latter’s consideration.
The crux of the April judgment by Justice JB Pardiwala and Justice R Mahadevan was elimination of arbitrariness in giving the Governor’s or President’s assent, if that is sought by the Governor, to a Bill passed by a state legislature for it to become law. This had been triggered by the Tamil Nadu government approaching the Supreme Court against Governor RN Ravi’s conduct of total and inexplicable inaction, for years, on Bills passed by the state’s legislature and presented to him for his assent, in violation of constitutional propriety and norms.
Re-adopting Bills
Under the constitutional scheme of things, even when states formulate laws on subjects that fall within their legislative competence as per the list of state subjects in List II of the Constitution’s Seventh Schedule, these Bills have to obtain the assent of the Governor before they can turn into law.
Also read: Presidential reference: Is it a win for Centre? SC lawyer Sanjay Hegde explains
When a Bill passed by the legislature is presented to the Governor for his assent, he has three options: he can give his assent, he can send it back to the legislature with his comments for its reconsideration, or he can refer it to the President for the latter’s consideration.
When the House receives a Bill back from the Governor with his message containing reservations, it can re-adopt the Bill, with or without incorporating the Governor’s concerns, and send it back to the Governor, “and the Governor shall not withhold assent therefrom.”
When the President receives a state Bill for his consideration, he “shall declare either that he assents to the Bill or that he withholds assent therefrom.” He may also direct the Governor to send the Bill back to the legislature with a message, explaining his reservations/suggestions.
If the legislature gets a Bill sent back by the President, it has six months within which to re-adopt the Bill, with or without modification, and send it back to the President for his consideration. A Governor is obliged to grant his assent to a re-adopted Bill, but not the President.
A Presidential reference is a query for legal clarity. The response given is not a ruling against any prior ruling by the Supreme Court. It may be recalled that the 2012 Supreme Court ruling that cancelled 122 telecom licences had based its finding of illegality of the licences on the administrative allocation of spectrum.
Can the Governor or President delay action on a Bill that comes up before his constitutional office indefinitely? The Constitution says the Governor will act “as soon as possible”. Justices Pardiwala and Mahadevan gave this amorphous injunction a tangible shape by framing some timelines for the Governor to act once a Bill is presented to him for his assent.
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If he gives his assent, he has to do that in one month. If he is sending the Bill back to the House with his message of observations, or referring it to the President, that has to be done within three months. And the President has to respond within three months of receiving the Bill for his consideration. If these timelines are breached, the state government can move the Supreme Court for redress. The verdict also deemed as assented to the Bills that were revalidated by the legislature of Tamil Nadu and sent back to the Governor for his assent, which he promptly reserved for the President’s consideration.
Political battle over democratic rights
The Constitution Bench’s response to the Presidential reference says such timelines and deemed assent are against the Constitution. Further, it says that the decisions of the Governor and the President with regard to withholding assent are not justiciable. However, it says that the Court has the limited scope to ask that a decision be taken, in case of inordinate delay.
A Presidential reference is a query for legal clarity. The response given is not a ruling against any prior ruling by the Supreme Court. It may be recalled that the 2012 Supreme Court ruling that cancelled 122 telecom licences had based its finding of illegality of the licences on the administrative allocation of spectrum. The GS Singhvi and AK Ganguly Bench deemed that natural resources should be allocated only by a competitive mechanism such as an auction.
A subsequent Presidential reference narrowly focused on how natural resources should be allocated was given the response by a Constitutional bench that natural resources could be allocated, in all fairness, by a variety of means other than competitive auctions, including by administrative allocation. That did not automatically reverse the cancellation of licences already undertaken.
Also read: SC’s opinion on Presidential Reference a shot in the arm for Centre
Someone will have to move the Court, seeking to reverse the Justices Pardiwala and Mahadevan ruling, to set aside the laws that Governor Ravi had sought to block, basing themselves on the current response to the Presidential reference. This would open up the issue in the Courts, and state governments and political parties should seek a larger Constitution Bench to reverse the present legal imprimatur to gubernatorial arbitrariness serving as a veil over political machinations by the ruling dispensation at the Centre against Opposition parties holding office in the states.
However, ultimately, this is a political battle over democratic rights, of the right of the people of a state to pursue their own socioeconomic and cultural priorities through state-level laws, without these being thwarted by an overweening Centre. Laws and norms are meant to subserve democratic rights and their interpretations should defend and expand these rights. When court rulings constrict rights, the laws should be clarified or changed. Our rights should not shrink.
Also read: A presidential reference too low
In 1857, the US Supreme Court ruled that black people could not be citizens, as they were property. This notorious Dred Scott ruling fed simmering discontent against slavery and accelerated the onset of the civil war that led to the abolition of slavery. The 14th Amendment to the US Constitution remedied the atrocious Dred Scott ruling.
Rights do not retreat in the face of atrocious court verdicts. Rights advance, laws change.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)
