It has been famously said that no case is ever finally decided until it is rightly decided. The Supreme Court's opinion in the latest Presidential Reference -In re: Assent, Withholding or Reservation of the Bills by the Governor and the President of India 2025 LiveLaw (SC) 1124 (the opinion) falls in that category. It has turned the Constitution on its head. References under Art 143 are made to illumine and resolve a constitutional or other question of law or fact where there is any doubt and the matter is not authoritatively pronounced upon by the Supreme Court. But doubts should not be contrived and the legal landscape left dismal and cloudy. The effect of the present reference and the opinion is just that.
The opinion bristles with faulty propositions that cut into the vitals of our constitutional democracy. Doubts have been created and constitutional fundamentals so distorted that it is like saying 'the sun rises in the west'. Nani Palkhivala wrote about the Constitution being defaced and defiled by certain unsupportable Constitution Amendments. The blame lay at the door of the executive and Parliament. This opinion is a typical instance of the Court desecrating the Constitution by turning it on its head. Nothing less has happened. The opinion is more pretentious than sound. More rhetoric than legal reasoning characterizes it. The so-called swadeshi interpretation about which the Court seems to pat its back is neither swadeshi nor interpretation. It is not even an apology for interpretation. It is simply re-writing of the Constitution in the image of the undisclosed author(s) of the opinion. Indeed, it may be remarked that the questions in the reference tempted one to say that one of the questions could also have been- Whether we should abide by the Constitution? The answers have virtually reframed the Constitutional scheme.
The Court speaks of the significance of the reference: “None of these references have related to constitutional mechanics - the day to day functioning of constitutional functionaries and the interplay between various functionaries (the State Legislature, Governor, and the President), with regards to enactment of legislation. This is, therefore, a 'functional reference', which is fundamentally of a different nature as compared to the earlier references under Article 143 - as it strikes at the root of the continuation of our republican and democratic way, and the Constitution's federal character. The nature of this reference, therefore, places a duty on this Court, to answer some, if not all, the questions so referred.”
Apart from the threshold bar of the reference being not maintainable which the Court seems to have got over by some act of legerdemain, the answers strike at the root of our Constitutional scheme, its federal character and democratic way which the Court purports to protect by its answers.
The reference was one under Art 143(1). The opinion is not a judicial pronouncement. But the views expressed by the Court in exercise of its advisory jurisdiction are binding on all other courts in the territory of India. Curiously even if the President consults the Supreme Court for advice, the advice rendered is not binding on the President- the executive. Nor does the advisory opinion operate as res judicata since there are no parties before the Court.
The reference itself was not maintainable. “Art 143(1) empowers the President to refer for the Supreme Court's opinion a question of law or fact which has arisen or is likely to arise. When the Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is. Hence under the said clause the President can refer a question of law only when the Court has not decided it.” [Cauvery Water Disputes Tribunal Reference, 1993 Supp (1) SCC 96] The answers to the questions posed were already available.
The reasoning by which the Court crossed this threshold bar is fragile and unconvincing. The Supreme Court taking a different view from an earlier one and/or overruling a view is in the course of adjudication, when the Court is called upon to decide a case, as is also clear from the judgments that are referred to. It is not in the exercise of advisory jurisdiction. This opinion has even committed the cardinal sin of saying that some or the other view in some earlier judgments is erroneous. That is totally outside the remit of the Art 143 jurisdiction. It is not even obiter dicta. It is, at best, gratis dicta-casual observations of no value or binding nature.
Amongst the many flaws, however, two take the crown: One, that the Governor is not necessarily to act on the aid and advice of the Ministry in discharging his functions under Art 200. The Court opined: “The Governor has three constitutional options before him, under Article 200, namely - to assent, reserve the Bill for the consideration of the President, or withhold assent and return the Bill to the Legislature with comments. The first proviso to Article 200 is bound to the substantive part of the provision, and restricts the existing options, rather than offering a fourth option. Pertinently, the third option - to withhold assent and return with comments - is only available to the Governor when it is not a Money Bill. The Governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the Council of Ministers, while exercising his function under Article 200.”
This is in the teeth of the well settled constitutional position for 75 years and the line of consistent judgments. Accepting this will create two parallel centres of power which the Constitution never envisages. There is hardly any substance in the view that Governors under our Constitutional dispensation are different from the appointees under the colonial regime. We have a democratically elected republic, as the Court points out. But the Governor is an unelected nominee of the Union Government. Experience over the decades has shown that with governments of different parties at the Centre and the States, Governors quite often act as agents of the Central Government or worse still of the party in power at the Centre even in the matter of assent. The Court's proposition is built on quicksand.
The Constitution has adopted the Cabinet form of representative democratic government tersely described as based on the 'Westminster model' where the King reigns but does not rule, the real power being vested in the Council of Ministers on whose aid and advice he is to act. It is now well established that the position of the President and the Governors is akin to that of the constitutional monarch in Britain. It is settled and clear that they have to exercise their powers and discharge their functions on the basis of Ministerial advice by which they are generally bound except where it is otherwise prescribed constitutionally or in exceptional cases which by their very nature are not amenable to Ministerial advice. That is the basic major premise. The Constitutional provisions in that regard are all pervasive and do not make any distinction between one function and another. That they have to act in accordance with ministerial advice holds good even in the matter of assent to Bills. If this were not the legal position, democracy itself would be in peril. For, the Governor not being answerable to anyone will become all powerful which is an antithesis to the concept of democracy. However, unfortunately and totally untenably, the Court has expressed a different view.
The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors, for, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that the President/Governor has general discretionary power to act against ministerial advice. (H.M. Seervai, Constitutional Law of India 4th Ed. p. 2037). The area of discretion is clearly defined and confined. Art 200 is not in the domain of discretion.
“There is no case which can arise where the President would be called upon to discharge his functions without the advice of the Prime Minister or his Cabinet… The position of Governor is exactly the same as the position of the President.” (Dr. Ambedkar, 30.12.1948 Vol VII CAD p.1158)
In the debate on Draft Article 175 which is Art 200, it was stated by Dr. Ambedkar that “the old proviso contained three important provisions. The first was that it conferred power on the Governor to return a Bill before assent to the Legislature and recommend certain specific points for consideration. The proviso as it stood left the matter of returning the Bill to the discretion of himself..... It was felt then that in a responsible Government there can be no room for Governor acting on discretion. Therefore, the new proviso deletes the words 'in his discretion'.” (14.6.1949 Vol IX CAD p 41)
Participating in the debate Sri T.T. Krishnamachari said, “I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The Governor is no longer vested with any discretion. If it happens that as per amendment no. 17, the Governor sends a Bill back for further consideration he does so expressly on the advice of his Council of Ministers. The provision has merely been made to be used if an occasion arises when the formalities envisaged in Art 172 (present Art 197) which has already been passed do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the Governor to hold up the further proceedings of the Bill and remit it to the Lower House with his message. If my Hon. Friend understands that the Governor cannot act on his own, he can act only on the advice of the Ministry then the whole picture will fall clearly in its proper place before him. It may happen that the whole procedure envisaged in Art 172 also goes through and then again something might have to be done in the manner laid down by the particular proviso but it is perhaps unlikely. It is a saving clause and vests power in the hands of the Ministry to remedy a hasty action or meet the popular opinion reflected outside the House, it does not detract from the power of the lower House or confer any more power on the Governor.” (p 61 of Vol IX CAD). In principle the position would be the same with regard to other provisions of Art 200 as also those of Arts 201 and 111.
Some of the relevant debates in the Constituent Assembly have been referred to by the Court. Yet, curiously enough, it comes to a strange conclusion.
It has been stated by Sir Alladi that “Art 74 is all pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill..... The expression 'aid and advise' in Art 74 cannot be construed so as to enable the President to act independently or against the advice of the Cabinet.....” In Art 111 dealing with the power to remit a Bill for reconsideration, “the President is not intended to be a revisional or appellate authority over the Cabinet. A Bill might have been introduced either by a private member or a member of the Cabinet. It may be rushed through in the Parliament. The Cabinet might notice an obvious slip or error after it has passed the Houses. This power vested in the President is as much intended to be exercised on the advice of the Cabinet as any other power.”
The purport of all this- the essence of the Westminster system that the Head of State acts on the aid and advice of the Cabinet-is clear from a passage in the Memorandum submitted by Prime Minister Asquith to King George V in 1913 and expressed tersely and precisely and which has been quoted in the Constituent Assembly Debates: “.......a constitutional monarch in this country is entitled and bound to give his Ministers all relevant information which comes to him; to point out objections which seem to him valid against the course which they advise; to suggest, if he thinks fit, an alternative policy. Such instructions are always received by Ministers with the utmost respect and considered with more respect and deference than if they proceeded from any other quarters. But, in the end, the Sovereign always acts upon the advice which Ministers after full deliberation and (if need be) reconsideration, feel it their duty to offer. They give that advice well knowing that they can, and probably will, be called upon to account for it by Parliament.” [CAD, Vol VIII, page 542 on 2.6.1949]
These conventions have been adverted to, reiterated and accepted by the Supreme Court as part of constitutional law and are hence legally enforceable. Reference may be made to some of the decisions- S.C. Advocates-on-Record Association v. Union of India (II Judges Case) (AIR 1994 SC 268); S.R. Bommai v. Union of India (AIR 1994 SC 1918).
All this has been referred to with approval by the Supreme Court in Samsher Singh v State of Punjab (1974) 2 SCC 831 and it has been stated therein: We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations...... We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course-a highly improbable contingency- or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.” It has been expressly stated that the function under Art 200 belongs to the species of power where the Governor is bound to act on the aid and advice of the Council of Ministers.
It is significant that the judgment of Krishna Iyer, J. in Samsher Singh case is a concurring judgment. It is not a dissenting judgment. The other judges did not demur. Therefore, that is the view of the Court. And further, this has been followed in later cases. Reading paras 54 and 56 in Samsher Singh in the judgment of Ray, CJ also it is clear that discretion is available to the Governor only under the second proviso to Art 200. The present opinion contrives a position which is contrary to everything that is relevant and verges on the imaginary.
As Seervai points out, “it is enough to say that Samsher Singh's case (AIR 1974 SC 2192) has finally established, it is submitted rightly, that the President is the constitutional head of government obliged to act on the advice of his Council of Ministers.” (H.M. Seervai: Constitutional Law of India 4th Ed. p 2035).
Samsher Singh was referred to a larger Bench to delineate the constitutional position of the President/Governor. It was necessitated by a couple of earlier rulings which really represented a drift and not the trend of judicial opinion in that behalf. The issue was whether the constitutional requirement of the satisfaction of the President/Governor means his personal satisfaction. The Court unequivocally reiterated the settled legal position that the President/Governor is only the constitutional head, the real power being vested in the Council of Ministers on whose aid and advice the President/Governor exercises his powers and functions. The satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the cabinet system of government, that is, the satisfaction of his Council of Ministers.
This has been referred to and followed by a five judge Bench in Madhya Pradesh Special Police Establishment v State of Madhya Pradesh, (2004) 8 SCC 788. In a still later case in State of Gujarat v. R.A. Mehta, (2013) 3SCC 1 the Supreme Court following the earlier decisions reiterated the legal position that the Governor is bound to act on the aid and advice of the Council of Ministers unless he acts as a persona designata under a particular statute or acts in his own discretion under the exceptions carved out by the Constitution itself and that Art 200 does not belong to the exceptions.
Against the backdrop of all this, everything falls in place; the answer is obvious. But still the Court opines otherwise which is wholly misconceived, unwarranted and untenable. The Court is never infallible and fallibility cannot be writ larger than it is in this opinion.
Various other provisions that are referred to - 'the vast array of Governor's functions' make no difference. The Governor is not to exercise any of those functions on his own. Reference to Arts 31A, 31C, 254(2) requiring President's assent does not carry the case anywhere. That assent only clothes those laws with immunity against attack on the ground of violation of fundamental rights or being in conflict with Union legislation; absence of it does not prevent the Bill becoming law with the assent of the Governor or the law being otherwise not valid.
The observation in the Punchhi Commission Report that functions under Art 200 are to be exercised in the discretion of the Governor and which has been referred to in Nabam Rebia (2016) 8 SCC 1 is a typical case of 'Homer nodding'. There is no discussion or reasoning and it flies in the face of the well settled position.
It is clear and well established that there is, and can be, no parallel centre of power. The Constitution does not envisage either the President or the Governor as another nerve-centre of power different from the Prime Minister/Chief Minister. It has been consistently held that while assent is necessary to convert a Bill into an Act, it is not legislative in nature, it is only part of the legislative process. Constitutional silences are not meaningless, they have to be imbued with substantive content to enhance the rule of law. Democratic values and ideals underpin the Constitution and inform its exposition. To give effect to the will of the people, to laws- measures that are enacted through and by their elected representatives- is the bottom line. If the Head of State sits over a Bill and delays assent or nullifies the Bill by not granting assent that would be the very negation of democracy which permeates the Constitution. That would also undermine the federal principle. The opinion will facilitate that.
The second flaw, and this is even more shocking, is that the Court opines that even when a Bill which is returned to the legislature and is passed again and presented to the Governor, he has the option of either assenting or reserving it for the President's consideration. The Court says that to hold he has no option then but to assent is textually untenable. This, it is submitted, is the limit to which language can be strained and logic perverted. It is also to be noted that withholding assent and returning the Bill is a contradiction in terms. Once assent is withheld the Bill lapses or dies. It is that the assent is not granted and the Bill is returned to the legislature. Withholding assent is a positive act.
Coming to the issue of justiciability, as submitted, there is no discretion under Art 200. Further, the concepts of limited government and judicial review constitute the essence of our constitutional system as Durga Das Basu points out and it involves three main elements: 1) a written constitution setting up and limiting the various organs of government; 2) the constitution functioning as a superior law or standard by which the conduct of all organs of the government is to be judged; 3) a sanction by means of which any violation of the superior law by any of the organs of the government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is “judicial review”. The judiciary is constituted as the guardian of the Constitution and the arbiter of the functions of all organs and the limits of their powers as grantees under the Constitution. To the judiciary is committed the function and responsibility of interpreting the Constitution. The purpose of public law is to discipline the exercise of power. Judicial review is the means of achieving that objective. Constitutionalism is limited government under a fundamental law. Judicial review is an incident of and flows from the concept of the Constitution being the fundamental higher law.
“Judicial review has developed to the point where it is possible to say that no power—whether statutory or under the prerogative—is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. Even when discretionary powers are engaged they are not immune from judicial review.” [DeSmith, Judicial Review] “No power is inherently unreviewable and in a constitutional democracy wedded to the rule of law, unfettered and unreviewable discretion is a contradiction in terms.” [Wade & Forsyth, Administrative Law] All this has been quoted with approval by the Supreme Court. [cf, inter alia, B.P. Singhal v Union of India, (2010) 6 SCC 331] This is the position even in England without a written constitution and Bill of Rights. The position is all the more reinforced in India. Judicial review is enshrined in our Constitution.
It is in the backdrop of such fundamental settled position that we must understand the constitutional position, also noting and keeping in view the earlier judgments and development of the law.
The Supreme Court declared the law in Samsher Singh v State of Punjab (1974) 2 SCC 831: We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional....” The only sequitur is that refusal of assent is justiciable. This is because refusal of assent would be unconstitutional means that such refusal can be judicially scrutinised and so declared by the court. In the light of this unequivocal enunciation of the constitutional position the President or the Governor cannot decline to assent to a legislation validly passed and if he does so, such action is justiciable and can be declared unconstitutional and he be compelled to grant assent.
The statement in Samsher Singh case that 'refusal of assent would be unconstitutional' is in the concurring judgment of Krishna Iyer, J. and as stated above, it is the view of the Court. Furthermore, this has been followed in later cases. Therefore, to rely on much older cases in which the issue did not arise and to hold that action under Art 200 is not justiciable is wholly unwarranted and misconceived. This in some way contradicts the Court's answer to Qt 3- 'However, in a glaring circumstance of inaction, that is prolonged, unexplained and indefinite, the Court can issue a limited mandamus for the Governor to discharge his functions under Article 200 within a reasonable time period without making any observation on the merits of the exercise of the discretion.' This is justiciability, however limited.
The passing observation in some earlier judgements that assent is not justiciable is not really the ratio. The question did not directly arise and was not put in issue and decided in those cases. There is no discussion to reach such a conclusion and those casual observations are really obiter. A proper and closer reading of the judgements will indicate that the position is otherwise.
In Purushothaman Nambudiri v. State of Kerala (AIR 1962 SC 694), the Court only observed that the Constitution does not impose any time limit within which the Governor should make any of the declarations (and similarly in the case of the President also). It did not say anything about the means of compelling assent. The observation was in the context and course of deciding whether a Bill lapses with the prorogation or dissolution of the House. That was the issue. The parties did not join issue nor did the Court decide as to whether the Governor (and the President) can be compelled to give assent and, if so, within a time frame. All this was over 60 years ago when the law was still in a nascent stage.
In Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019: (1983) 4 SCC 45 again the justiciability or otherwise of the action under Arts 111, 200, 201 was not the issue. What fell for decision was the power of the State Legislature to levy a particular tax and whether the State law conflicted with any Central law. It was argued that the law was relatable to a subject in the State list and there was no necessity or occasion for the Governor to have referred the Bill to the President for his assent. It has been stated in the judgement that the Governor may, on the advice of the Council of Ministers, reserve a Bill for the President's consideration and assent. The Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt it necessary to reserve it for the President's consideration. It was held in that context that the assent of the President is not justiciable and 'no infirmity arising out of his decision to give such assent could be spelled out.' These last words contain the key to the decision and indicate that in the circumstances there was no infirmity in giving assent. It would thus be possible to examine if there is any infirmity and decide the matter which indeed is justiciability of assent.
In Bharat Seva Ashram Sangh v. State of Gujarat (AIR 1987 SC 494): (1986) 4 SCC 51 there is only an incidental observation following and quoting Hoechst Pharmaceuticals Ltd. that assent is not justiciable. The question did not at all arise. The Gujarat Ordinance which was later replaced by the Act was promulgated with instructions from the President under Art 213 and it was held that it would prevail in the State.
A major step forward was taken in the Constitution Bench judgement of the Supreme Court in Gram Panchayat of Village Jamalpur v. Malvinder Singh (AIR 1985 SC 1394: (1985) 3 SCC 661. It was laid down therein that consideration of the President and giving his assent is not an idle or empty formality. It requires application of mind. If assent is sought for a particular purpose, say Art 31A- for the law to enjoy immunity from challenge on the ground of violation of Art 14 or 19 – its efficacy would be limited to the said purpose –and will not avail to cure the repugnancy, if any, as envisaged under Art 254(2). It was held that the Act in question did not have the assent under Art 254 (2).
This view has been followed and reiterated by another Constitution Bench in Kaiser-I-Hind (P) Ltd. v. National Textile Corporation (AIR 2002 SC 3404): (2002) 8 SCC 182.The Court held that 'reserved for consideration' {in the context of Art. 254 (2)} indicates that there should be active application of mind by the President to the repugnancy pointed out between the proposed State Law and the earlier Central enactment and the necessity of having a different State law. The Court can call for and examine the files relating to the proposal for obtaining the President's assent. It was further held in Kaiser-I-Hind that the power to grant assent is not an exercise of legislative power but is a part of legislative procedure and hence the Court can examine whether the constitutional procedure before enacting the law has been followed or not. On facts it was held that there was no assent to cure the repugnancy. What else is this but justiciability?
These decisions do not detract from the tenability and appropriateness of the earlier discussion. The judgement in Samsher Singh {in 1974 by a 7 Judge Bench} has not been noticed in Hoechst Pharmaceuticals {in 1983 by 3 Judges} or in Bharat Seva Ashram {in 1986 by 2 Judges} in which cases it has been casually observed that assent is not justiciable. This is no binding precedent under Art 141. It is indeed per incuriam. In any event the later judgement in MP Special Police Establishment {in 2004 by a 5 Judge Bench} should clinch the issue.
The constitutional position is settled. A variety of Presidential/Gubernatorial powers and functions have been the subject of judicial review over the years: Actions under Art 356-imposition of President's rule, proclamations under Art 356 have been held to be unconstitutional; Art 156-pleasure doctrine-removal of Governors, withdrawal of President's pleasure was held to be open to judicial review; Art 72 & 161- power of pardon, impugned orders have been held as unsustainable and set aside. These are some areas where the Court has scrutinised the actions of the President or the Governor and issued directions. There is thus no bar to judicial review re: actions under Art 200/201 or 111; any direction to grant assent is clearly permissible and legitimate.
Judicial review is constitutionally entrenched in India and it is well recognized that the range of judicial review exercised by the superior judiciary in India is perhaps the widest and the most extensive known to the world of law. It is significant to note that even in UK where the concept of Parliamentary supremacy exists and judicial review is to that extent limited, the UK Supreme Court in R (on the Application of Miller) v The Prime Minister [2019] UKSC 41 ruled that the royal prerogative of prorogation of Parliament was amenable to judicial review and the impugned prorogation was held to be unlawful and it was declared that there was no prorogation. To opine that action under Art 200 is not justiciable is wholly misconceived and retrograde.
It is now well settled that every State action has to be reasonable. The reasonable exercise of power inheres its exercise within a reasonable time. Where no time limit is fixed for the exercise of power, it has to be exercised within a time that can be held to be reasonable. The exercise of power under Arts 111, 200, 201 is no exception. That must also pass the same test of reasonableness. It is true that no express time limit is prescribed for the discharge of functions under Arts 200 or 201. But it is equally true that these functions have to be discharged and these powers exercised within a reasonable time for such action to be reasonable. What is reasonable will depend on the facts and circumstances and vary from case to case. No timelines can be imposed/prescribed except by statute; it cannot be done by judicial fiat. But a court of judicial review can fix a standard/timeline by which the reasonableness of the action/exercise of power may be examined.
In the Tamil Nadu case the Court laid down certain timelines regarding exercise of power under Arts 200 and 201, not to fundamentally change the procedure and mechanism stipulated by these provisions but only to lay down a determinable judicial standard for ascertaining the reasonableness of the exercise of power. The court of judicial review is the arbiter of the reasonableness of the exercise of power. The court cannot simply say that the power is exercised unreasonably. Some standard or yardstick is required to determine the reasonableness. The timelines have been laid down for that purpose. That has been done taking into consideration the recommendations of the Sarkaria and Punchhi Commissions as also guidelines issued by the Union Home Ministry in this behalf. They are fixed more as a yardstick for the Court to determine in judicial review whether the action/exercise of power is reasonable, as is clear from the judgment. The observations in paras 237 to 241 are unmistakable. It is not an amendment to the Constitution. No words were added to the constitutional text of Arts 111, 200 & 201.
The opinion also speaks of the duty of the President/Governor to "preserve, protect and defend the Constitution". This duty is generally discharged by acting on the advice of the democratically elected government. The President/Governor cannot simply override the cabinet's advice based on their personal interpretation of the Constitution, as this would contradict the principles of a parliamentary system where the elected government holds real power: it is both representative and responsible. By doing so, the President/Governor would be subverting the Constitution. If every functionary who takes the oath interprets the Constitution according to his lights, it would result in chaos and the first casualty would be the rule of law.
It is incomprehensible how a court can say that it will, in the matter of constitutional interpretation, go only by the text of the Constitution without regard being had to the conventions and the gloss that life and judicial decisions have written on it, and even the Constituent Assembly debates. The Court appears to have missed the insightful observations of the Constitution Bench in U.N.R. Rao's case that “we are interpreting a Constitution establishing a parliamentary system of government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.”
Fortunately it is an advisory opinion and not a declaration of law after adjudication. Yet, it is bad enough. The Court has done a great disservice to itself. It is reminiscent of 'The King can do no wrong”, a theory long since discarded even in monarchies, at least constitutional monarchies. Then what to say of our republic! It has struck a death blow to the Constitution, democracy and federalism. It has great potential for mischief and incalculable harm to constitutional democracy. It has turned the clock back effacing our constitutional journey of the last so many decades. The earlier it is confined to the dustbin of history the better it would be for our nation.
Prof. Glanville Williams' stringent criticism of the decision of the House of Lords in Anderton v. Ryan 1985 AC 560 and the Law Lords' response to it in R v. Shivpuri 1987 AC 1 come to mind, perhaps with a contemporary ring. “The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their determination to use the English language so strangely that what they spoke by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law; and of their immobility on the subject, carried to the extent of subverting an Act of Parliament designed to put them straight. {Prof.Glanville Williams: The Lords and Impossible Attempts or Quis Custodiet Ipsos Custodes, (1986) CLJ 33}.
Lord Hailsham L.C. (presiding in R. v. Shivpuri) said, “There is obviously much to be said for the view to be expressed by Lord Bridge that 'if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better'.” And Lord Bridge giving the leading opinion for a unanimous House, overruling the earlier decision said, “I cannot conclude this opinion without disclosing that I have had the advantage since the conclusion of the arguments in this appeal of reading an article by Prof Glanville Williams. The language in which he criticizes the decision in Anderton v. Ryan is not conspicuous for its moderation, but it would be foolish on that account, not to recognise the force of the criticism and churlish not to acknowledge the assistance I have derived from it.”
It is true that judicial overreach is bad, but that is equally true of judicial surrender or self-abnegation. The Supreme Court has said time and again that it is for the Court to uphold constitutional values and enforce constitutional limitations. That is its primary role in our constitutional scheme. With views like in the opinion it seems to has given over. Where there is no vision the old adage may stand. Holding that action under Arts 111, 200,201 is justiciable and that it must be within a reasonable time failing which the court can intervene is not judicial overreach; it is a legitimate exercise of the power of judicial review for which the Court exists. President Roosevelt's remark in his speech to the nation on March 9, 1937 comes home with a strange poignancy: “We must take action to save the Constitution from the Court and the Court from itself.” The Constitution belongs to us, the people. It is presently in our keeping and we, at once its servants and its masters, renew and maintain our allegiance to it. It was Edmund Burke who proclaimed: “Nobody makes a greater mistake than he who does nothing because he could do only a little.”
Author is Senior Advocate, Supreme Court of India. Views Are Personal.