The Supreme Court’s advisory opinion on the 16th Presidential Reference refrained from charting a definitive path for states grappling with legislative paralysis caused by gubernatorial delay. The five-judge Constitution Bench affirmed that courts cannot usurp the functions of the President or governors by allowing ‘deemed assent’ to bills passed by the legislature if any court-mandated deadline lapses. Such judicial overreach would not only contravene the spirit of the Constitution but also the hallowed doctrine of separation of powers, the top court held. It answered the President’s reference to the court in May, which was prompted by a two-judge Bench’s ruling on the Tamil Nadu governor’s delay in giving assent to bills.
Under Article 200 of the Constitution, a governor has three options: to accord assent to a bill, to reserve it for presidential consideration, or to return the bill to the legislature with comments, provided it is not a money bill. The Constitution Bench agreed with the smaller Bench’s opinion delivered this April that withholding assent strikes at the root of federalism and constitutes a diminution of the legislative authority vested in elected assemblies. Equally, it held it impermissible for courts to adjudicate on a bill’s contents in any manner before it becomes law.
The question would not have come before the top court had governors of several states, not just Tamil Nadu, not indulged in protracted procrastination, with some bills hanging fire for years. The advisory opinion addressed the 14 constitutional questions the President asked of the top court, not the Tamil Nadu verdict that triggered the reference. So the opinion’s words forbidding “prolonged and evasive inaction” do not amount to clarity on the recourse Tamil Nadu or other states have if they face the same predicament again.
Parties like the DMK intend to make political fodder out of the opinion. Tamil Nadu Chief Minister M K Stalin, reaffirming his commitment to federal principles and state autonomy, has vowed to continue the fight until the Constitution is amended to enshrine a binding timeline for governors. That was, in effect, the suggestion of the Supreme Court when it reaffirmed the line between judicial and legislative powers. If politicians are truly convinced of the need for deadlines, they have to practise their principal art—persuasion, on each other in parliament, or on voters at the next hustings.