Supreme Court In Defence Of Rule Of Law, Federal Loyalty And Constitutional Supremacy

The Union Government's proposed legislative reversal of this judgment raises significant concerns. Through some selected media outlets, the Union Home Ministry hinted that the government is contemplating moving a review petition. Furthermore, the recent comments made by the Vice President, stating that the Supreme Court is behaving like a super parliament with no accountability, reignited the debate between parliamentary supremacy and judicial supremacy. The remarks made by the Vice President are unwarranted and an attempt to legitimise the regrettable behaviour of the R N Ravi, the Governor of Tamil Nadu. In the said judgement, the Supreme Court has emphasised the necessity of upholding constitutional supremacy, the rule of law, and democratic values under all circumstances. This judgment merely restores the federal balance between the centre and the states, while the Governor's actions are perceived as potentially mala fide and detrimental to the equilibrium of federalism. This situation has sparked critical discussions regarding the implications of executive overreach in this context.

In this analysis, an attempt has been made to examine the judgment's jurisprudential foundations and understand the ruling through federalism context. It is well settled that the Governor's role is as a constitutional sentinel, and the imperative of upholding Bundestreue (the German doctrine of federal loyalty) within India's federal framework. The German principle of Bundestreue implies mutual respect, cooperation, and restraint among different levels of government in a federation. It mandates that the Union and the States act in a manner that upholds the spirit of the Constitution and does not encroach upon each other's domain. In a diverse and pluralistic polity like India, federal loyalty is not merely a theoretical ideal but a necessary condition for the effective and harmonious functioning of the federal structure.

The Constitution of India, though unitary in bias during emergencies, establishes a federal framework with a clear demarcation of sharing of powers between the Union and the States-especially in legislative federalism, where Schedule 7^th should be interpreted harmoniously and avoid a confrontational approach. However, instances of deviation from federal loyalty have raised critical concerns. The role of the Governor, agent of the centre in the State, has often come under scrutiny for breaching tenets like federal loyalty, neutrality and upholding democratic values. Several Governors have acted in ways that appear politically motivated, including delaying assent to Bills passed by State legislatures, recommending the President's Rule without substantial justification, or interfering in day-to-day governance. Such actions not only undermine State autonomy but also destabilise democratically elected governments.

Judicial pronouncements, such as S.R. Bommai v. Union of India (1994), have aimed to limit the arbitrary application of Article 356. However, we continue to witness instances of constitutional transgressions, which indicate a need for more robust frameworks within Indian federalism. The challenges faced underscore the importance of fostering federal loyalty to enhance cooperative federalism and reduce tensions between the Union and the States. The recent judgment in State of Tamil Nadu v. Union of India (2023) serves as a significant reminder for those in constitutional offices to embrace the principle of federal loyalty, or Bundestreue, which is vital for the harmonious functioning of a federal state. In the Indian context, reinforcing this principle is key to building institutional trust and maintaining the constitutional balance. To achieve true federalism in India, it is essential to strengthen mechanisms for intergovernmental dialogue and ensure that constitutional offices, particularly that of the Governor, operate impartially. Taking these steps can pave the way for a more collaborative and effective federal structure.

II. Legislative Power in Federal Systems: Jurisprudential Thoughts

Federalism, as an essential element of democratic pluralism, requires a delicate balance between the legislative competencies of the central government and the states. The foundational principle of this balance, as articulated in State of West Bengal v. Union of India (1963), is encapsulated in the notion of the “indestructible union of destructible states," authored by Justice B P Sinha and Justice Syed Jafar Imam. However, this equilibrium is continually challenged by both centrifugal and centripetal forces. Prominent jurists have long wrestled with this tension. Montesquieu, in De l'Esprit des Lois (1748), asserted that federal systems flourish when “power checks power”, a principle reflected in the 7^th Schedule of the Constitution of India

Similarly, the Basic Law of the Federal Republic of Germany (Article 20 read with Article 30) enshrines the concept of Bundestreue, which mandates mutual trust between federal and state authorities. Justice Louis Brandeis, in New State Ice Co. v. Liebmann (1932), praised states as “laboratories of democracy,” a metaphor that highlights the principle of subsidiarity. In India, legislative authority is delineated under Part-II of the Constitution, specifically Articles 245–255; however, the residuary powers (Art. 248) are vested in the Union, indicating a centralizing tendency. Yet, the Supreme Court's recent judgment reaffirms that federalism is not merely a matter of legal technicality (S.R. Bommai v. Union of India, 1994) but constitutes a “basic structure” (Kesavananda Bharati, 1973) that remains inviolable even through constitutional amendment.

III. The Governor's Role: Based on Neutrality and Constitutionalism

The office of the Governor, as described in Article 154, is designated as the “pouvoir neutre” (neutral power grounded in constitutionalism) with the crucial responsibility of upholding constitutional morality. However, as Alexis de Tocqueville cautioned, “administrative centralisation creates only an illusion of strength.” Any shift towards the concentration of power increases susceptibility to political manipulation, posing a serious challenge to federal harmony. In a nutshell, the role of the Governor should not be seen as that of a team captain, but rather as an umpire whose primary responsibility is to ensure that the game is conducted according to established rules and in the spirit of fair play. His limitations are clearly defined in Articles 153 to 162 of the Constitution of India. In the case of Nabam Rebia v. Deputy Speaker (2016), the Court issued a warning against gubernatorial “mala fides” and “caprice.” In this case, the apex court reminded the Governor that all his actions are within the purview of judicial scrutiny and he should not treat himself as an authority beyond the rule of law.

The judgment from Tamil Nadu unequivocally reinforces the perspective that gubernatorial inaction on Bills—sine causa rationabilis (without reasonable cause)—is a blatant violation of the “trust reposed” under Article 163. When the State Legislature passes a Bill and sends it to the Governor for concurrence, the Raj Bhawan has very limited authority to obstruct the proposed law. This doctrine is rooted in the principle that the legislature serves as the collective voice of the people, and the council of ministers embodies this voice within the assembly; thus, the Governor has no legitimate authority to suppress the will of the people, as he is merely an agent of the union in the state. Governor R N Ravi's decision to withhold essential Bills, labelled them ultra vires, is a clear non sequitur about his constitutional duties. The Court's directive for restoration to original condition for lapsed Bills underscores the critical necessity for timely assent to maintain the efficacy of the legislative process.

IV. Judicial Review and Article 143

The invocation of Article 143 by the Supreme Court, allowing for presidential referrals concerning constitutional doubts when a Governor withholds assent, underscores a distinctive feature of the Constitution of India. This provision enables the Supreme Court to resolve disputes between the Union and the States through its opinion jurisdiction. Therefore, merely characterising bills as unconstitutional or brandishing the Bill as an encroachment on federal principles is insufficient; rather, the President is likely to prioritise such cases and utilise the mechanisms available under Article 143 of the Indian Constitution. As Hans Kelsen noted, the judiciary acts as a "negative legislator," determining whether the legislature has performed its duties appropriately, thereby invalidating norms that contravene the Grundnorm.

V. Vice President's remarks negate the constitutional supremacy

The recent remarks by the Vice President of India questioning the judiciary's role, particularly the Supreme Court's power under Article 142 of the Constitution, to safeguard the rule of law and the basic structure of the Constitution, are constitutionally untenable and raise serious concerns over the separation of powers enshrined in our constitutional framework. The assertions that the judiciary is delineating timelines for the president's decision-making process and assuming a "super Parliament" role are unfortunate. The Vice President needs to acknowledge that in instances of constitutional breaches, passivity from the judiciary is not an option. The Supreme Court's judgment should be interpreted as a reaffirmation of constitutional supremacy and obedience of tenets enshrined under the Kesavanand Bharti case-separation of power, federal governance and democratic system.

Additionally, the Vice President has overlooked the untenable delay by the Governor in approving ten critical Bills, lacking any substantial rationale for such inaction. The principle of federal loyalty, which is widely acknowledged by contemporary nation-states, is extensively detailed in various judicial pronouncements, emphasising that the office of the Governor does not represent the popular mandate of the state. In a federal democratic context, the true authority resides with the Council of Ministers. The Sarkaria Commission Report (1987) highlighted instances where gubernatorial actions were influenced by the central government, indicating that many such actions were politically motivated. Within this tripartite framework, the judiciary is entrusted with the earnest duty to ensure that all three wings of the state remain within the confines of the Constitutional framework. It is not only a co-equal branch but also the final interpreter of the Constitution, and it is empowered to strike down any legislative or executive act that contravenes constitutional mandates.

The judgment in the case of State of Tamil Nadu v. Union of India (2023) serves as a stark reminder to both the legislature and political class that mere numerical strength in Parliament does not grant the authority to alter the basic structure of the Constitution. In essence, the voices of opposition-ruled states cannot be stifled through the actions of a Governor who aligns himself more closely with New Delhi than with the state legislature. The judiciary, in exercising its review powers under Articles 13(2), 32, and 226, plays a crucial role as the guardian of constitutional supremacy and the rule of law. To suggest that judicial intervention in unconstitutional legislative actions undermines parliamentary sovereignty represents a fundamental misunderstanding of the Constitution. In India, parliamentary sovereignty is not absolute; it is constrained by constitutional supremacy, and the President and Vice President have to uphold constitutional morality.

VI. Contemplating Review Petition- Giving Sanction to Governor to Abuse Constitutional Power?

The significant implication of this ruling is that all ten Bills awaiting presidential approval are enacted into law without requiring the Governor's assent. This decision also offers a measure of reassurance for States governed by opposition parties. Moreover, the central government's purported intention to challenge the ruling poses a substantial threat to the principle of judicial supremacy. Through select media outlets, the Union Home Ministry has expressed its discontent with the ruling in the Tamil Nadu case and hinted at the possibility of filing a review petition in the Supreme Court. This development, resonating within the legal community and civil society, raises the question: Is the government granting the Governor's office a mandate to misuse its constitutional powers? The message is unequivocal— the Governor is not entitled to overstep the limitations imposed under Article 163 and must adhere to various Supreme Court judgments on similar matters.

VII. Conclusion: Let Prevail Constitutionalism

The Tamil Nadu judgment is a sui generis reaffirmation of federal comity and judicial guardianship. Governor Ravi's censure and the Bill revival underscore the Court's role as the aegis of constitutionalism. The Union's reaction, however, risks fostering a de facto unitary state, anathema to India's federal fabric. As the German jurist Rudolf Smend argued, “constitutional law thrives on integration through dialogue among branches”. The Court's judgment, invoking Bundestreue, mandates such dialogue. To subvert it legislatively would be contra legem, eroding the Grundnorm that sustains India's democratic edifice. In the words of Justice Holmes, “The life of the law has not been logic; it has been experienced”—and experience teaches that federalism flourishes only when power is exercised cum fide (in good faith).

The author teaches at Campus Law Centre, Faculty of Law, University of Delhi. Views are personal