Editorial: A fatal blow to the federal spirit

To all those who kept faith in India as a federal Union, the Supreme Court's advisory opinion on the President’s reference relating to the powers and limitations of Governors in dealing with Bills passed by State legislatures is a crushing disappointment. At a time when the BJP-led Union government’s gubernatorial appointees have been functioning more like viceroys than custodians of the Constitution, it was expected of the apex court to protect the judicious balance of power between the states and the Centre. By tipping it in favour of New Delhi, the spirit of federalism has been put in jeopardy.

Interpreting Article 143 of the Constitution in response to the Presidential Reference, a five-judge bench of the Supreme Court unanimously opined that to set a time-limit for Governors to dispose of State Bills would be tantamount to “usurpation” of gubernatorial functions, and therefore antithetical to the basic features of the Constitution. Since there can be no judicially imposed timeline for a governor to act, it follows also that there can also be no "deemed assent" when he or she has not given assent to a Bill within a deadline.

The judges did acknowledge that Governors only have discretion under Article 200 to withhold assent to a Bill by returning it with comments or by referring it to the President's consideration, but such a discretion is not strictly bound by the advice of the State Cabinet.

This ruling by the Constitution bench is a reversal of a judgment by a two-judge bench, delivered on April 11, in State of Tamil Nadu vs. Governor of Tamil Nadu, in which it was ruled that the Governor (or the President) cannot indefinitely delay assent to a Bill passed by a State legislature.

There have been several cases in recent years of Governors in various states delaying assent to important legislations. The most prominent of these cases involved Tamil Nadu Governor RN Ravi who kept as many as 10 Bills, including those related to the appointment of State University Vice-Chancellors, pending for more than three years.

Similar issues have emerged in other states such as Kerala, Punjab, Delhi and Telangana, all with non-BJP governments, where Governors have sat on key legislative proposals to frustrate the elected government. In most cases, the pending period ranged from several months to several years.

Faced with the challenge of Governors effectively wielding a veto on their functioning, states had no recourse but to approach the Supreme Court. But instead of underscoring the federal spirit of the Constitution, the apex court has taken a strictly textual view of the matter, shying away from the charge of judicial activism. The point that the five-judge bench made, about the need for a separation of powers between the judiciary and the executive, is well-taken. But then, who will be the referee when New Delhi, through its gubernatorial appointees, respects no separation of powers between the Centre and the states, as when the Union government acts on subjects reserved for states in the State List, or when governors issue firmans to officers directly, or set up cyclone relief situation rooms in parallel with the state administration?

Democracy is in retreat the world over. In many countries, be it the US, Israel, or even Pakistan, the courts are the last bastions of it. So much more was expected of the judiciary in India.