The advisory opinion issued by a five-judge bench of the Supreme Court has, for all practical purposes, reduced India’s representative democracy to a plaything in the hands of a governor.
The opinion was expressed in response to a Presidential Reference in light of the April 8 verdict returned by a two-judge bench of the court that emphatically called out the Tamil Nadu governor for his blatant disregard for the Constitution through calculated gubernatorial procrastination.
The context is that the governor sat on 12 bills — some dating back to 2020 — for several years. When the aggrieved state government approached the court in November 2023, the governor referred two bills for the President’s consideration.
Thereafter, the state Assembly convened a special session and re-passed the remaining 10 bills for which assent was withheld. When these 10 bills were re-presented before him, the governor referred them for President’s consideration. Out of these 10 bills, only one bill was assented to by the President, while the remaining were either rejected or kept pending.
It is against this background that the two-judge bench laid down certain guidelines on the manner in which the governor must exercise the power to withhold or reserve assent. Both the timelines and the deeming of assent was necessary and appropriate in the specific circumstances of the case, which was founded on clear mala fides and constitutional misconduct by the governor.
The advisory opinion, issued on November 20, unfortunately, travels in the opposite direction by enabling, rather than curtailing, unbridled power and authority exercised by a governor when it comes to acting on bills lawfully passed by the state Assembly. The court has opined that since the Constitution does not specify timelines, gubernatorial action is not justiciable in light of Article 361, which grants constitutional immunity to the governor.
The immediate consequence of the court’s approach is deeply troubling: an unelected office-holder could choke the democratic will of the people simply by sitting indefinitely on bills. It is concerning that the court reached this conclusion despite having the benefit of the April 8 judgment, which recorded disturbing factual details about the Tamil Nadu governor’s conduct.
Nowhere does the Constitution contemplate a “pocket veto” or “absolute veto” to be exercised by the governor at will. The advisory opinion further compounds the ambiguity by simultaneously asserting that the court has limited jurisdiction to deal with an errant governor and that constitutional immunity is not a bar to exercising judicial review in cases of inaction. This is as vague as it can get.
According to the court, a governor cannot indefinitely stall bills and must act within a reasonable timeframe, but without defining what that timeframe is. In practice, this leaves future benches, as constituted by the sitting Chief Justice of India, with wide discretion to decide on a case-to-case basis, whether a governor acted reasonably.
Excessive judicial discretion aside, two serious concerns follow. First, a bill would remain stalled until the court ultimately rules on whether the delay is unreasonable – something that could take years rendering the matter fait accompli.
Second, matters could become even more fraught if the court issued directions to a governor and those directions were ignored. Would the Supreme Court invoke its contempt powers: something it has not done when the executive exercised a pocket veto over judicial appointments?
Although the non-binding nature of an advisory opinion means it cannot (and does not) overrule the April 8 judgment, it nonetheless carries considerable persuasive value and could prompt a future reconsideration and reversal of that decision by a larger bench.
The framers of the Constitution envisioned governors as guardians acting to advance democratic governance. The lived experience of our Republic has instead been the opposite: governors routinely function as political agents of the union government and have frequently undermined constitutional culture. Five judges of the court chose to look the other way.
(The author is a lawyer)
Footnote is a weekly column that discusses issues relating to Tamil Nadu