Restoration of Constitutional Power

DOES THE governor of a state enjoy a measure of discre­tion in giving as­sent or withholding it to a Bill passed by a state Assembly? In April this year, a two-judge bench of the Supreme Court delivered a far-reaching ver­dict in which it eliminated al­most any role for a governor in this matter. It, in effect, sought to efface almost 75 years of a complex, and at times, diffi­cult history. The court went as far as to prescribe time limits on governors to give assent to Bills, ranging from one to three months. It did not rest there; it prescribed time limits for the president of India if the governor reserves a Bill for the president. Even more dubi­ously, the court suggested that in case a Bill was suspected to be unconstitutional, the president ought to make a reference to the apex court.

These were extraordi­nary interpretations of the Constitution that led to howls of protest almost instantaneously. A month later, on May 13, the president used her power to consult the court under Article 143 of the Constitution.

On November 20, the Supreme Court delivered its advisory opinion and restored a semblance of order on the powers of a governor and the president. The president had an extensive list of 14 questions in the wake of the judgment in April. The court answered 11 questions while declining to answer three that it said were “too broad” or did not pertain to the issue at hand.

This was a delicate issue for the court to handle. On the one hand, a number of states—ruled by Opposition parties—said the advisory jurisdiction invoked by the president (Article 143) was nothing more than an at­tempt to overturn the court’s judgment in April. The court does give the chance for a review option, through review petitions, but that is a different process. In any case, the powers of a governor (and the president) cannot remain under a cloud for too long. The risks involved are too great.

The court, led by the Chief Justice of India BR Gavai, acted with dispatch to its credit. In just a little over six months, it clarified the constitutional position once again.

The crux of the court’s ver­dict is simple: The governor does enjoy a measure of discre­tion when it comes to giving assent to Bills passed by a state legislature. The governor does not have the discretion to sim­ply veto a Bill. The ordinary wording of Article 200, which deals with the governor’s powers to give assent to Bills, does allow withholding of assent, but this power has been interpreted away by the courts. On November 20, the Supreme Court reiterated this position but crucially restored discretion to the governor to refer Bills to the president or even take time to give assent to Bills. In April, the court had eviscerated these powers of a governor completely. Even if he wanted to refer the Bill to the president, it imposed severe constraints on him to do so. For virtually any step to be taken under Article 200, he had to listen to his council of ministers.

It goes without saying that was an extraordinarily dan­gerous proposition for India.

A part of the problem in the courts entering the ‘political thicket’ is that they are not trained to do that. The judicial function is backward-looking: it is meant to correct errors that have occurred at the hands of the executive and, much more sparingly, at the hands of the legislature. In contrast, the legislative function is forward-looking: it channels democratic aspira­tions of a people into laws that enable better governance and welfare. The courts are simply not equipped to handle this task. And yet, Indian courts routinely exercise “judicial review” to strike down laws, often based on petitions presented by political parties opposed to the government of the day. This tendency has become much more pronounced in recent years. Judicial review serves its pur­pose when there is obviously, on the face of it, some patent unconstitutionality in an Act passed by the legislature. Too much intervention on this score has a dangerous fallout: legislatures, including Parlia­ment, become mere permis­sions offices while courts become the final arbiters of the legislative process.

Now, no court wants to say this openly as that would be too brazen a thing to say. But nor do they draw a line where it is necessary, say, by declining such petitions at the admission stage. Often, it leads to incongruous situ­ations where ‘activist’ judges end up issuing judgments that have to be reviewed later or, as in the current matter, some other way has to be found to limit the damage.

This process went along a path of logical progression when states began to chal­lenge the actions of their gov­ernors. The April judgment was the product of a challenge mounted by the Tamil Nadu government against its gov­ernor who, allegedly, did not give his assent to Bills in time. But giving assent to a Bill is as much a constitutional process as it is a political one. A gover­nor, for example, has a duty to prevent Bills that he thinks can be deleterious or danger­ous for any number of reasons. He—and not the courts—is the real check on ensuring that a legislature does not err in this matter. The discretion afforded to him by the origi­nal, 1950, Constitution, was part and parcel of the package of checks and balances that the Constituent Assembly thought was necessary.

India, no doubt, has a diffi­cult history where governors have abused their power to dismiss duly-elected govern­ments or interfere in other wanton ways. But over time, through judicial disciplining and by a process of learning, governors and the Centre have come to understand that such actions are unac­ceptable and have political consequences. Instead, the courts seem to have gone too far in the other direction where it imposed dangerous constraints on governors and the president herself. Juvenal’s line Quis custodiet ipsos custo­des? applies more to the courts today than to India’s much-maligned politicians.

The court’s attempt to restore the balance is best described in its own words: “…The governor is the sole authority to reserve a Bill for the consideration of the presi­dent under Article 200. For a moment, if it is assumed that there is no discretion, then even if advice is tendered con­trary to the written text of the Constitution, the governor will be bound by such advice. If that be so, the governor and the president ultimately fail in their duty to protect and defend the Constitution because the president’s power of assent is hinged on the governor’s power to reserve the Bill for the consideration of the president. Viewed from both angles, the Constitution must be read as conferring on the governor this discretion.” (Paragraph 83 of the Supreme Court’s advisory opinion.)

The Supreme Court chose the path of prudence on November 20. It undid the damage that one of its benches inflicted on the In­dian polity some months ago. In too diverse a country, there are dangers that lurk, dangers that cannot be anticipated ex­cept by the men (and women) in its far-flung districts and provinces. Their choices ought to be respected.