In the ongoing politico-legal debate certain fundamentals need to be remembered and kept in view so that the focus is not lost. These fundamentals are: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...
In the ongoing politico-legal debate certain fundamentals need to be remembered and kept in view so that the focus is not lost. These fundamentals are:
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. “He can do nothing contrary to their advice nor can he do anything without their advice.” The constitutional position of the President/Governors in India is the same. 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. Articles 74, 75, 77, 78 with regard to the Union and Articles 163, 164, 166, 167 concerning the States capture and embody the essence and nuances of the parliamentary system which the Constitution has adopted. These Articles are all pervasive and do not make any distinction between one function and another. That the President and Governors have to exercise their powers in accordance with ministerial advice holds good even in the matter of assent to Bills. The Constituent Assembly Debates and the judgments underscore this position.
The basic major premise of our Constitution is that what obtains is limited government. It may be said that 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.
In the latest decision of State of Tamil Nadu v Governor of Tamil Nadu, the Court held that the power of judicial review in a written constitution is implicit, unless expressly excluded by the Constitution. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of Bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards. The different situations and circumstances where the action of the Governor/President under Art 200/201 is justiciable have been clearly delineated and the grounds of judicial review stated. It is settled that every authority has to act reasonably and that includes that every power must be exercised within a reasonable time. The Court accordingly 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. This cannot be faulted.
The Court did not lay down anything very new or different. It did not really expound the law; it only applied and amplified and took the law further from Samsher Singh which in one pithy sentence that 'refusal of assent would be unconstitutional' established that withholding of assent is justiciable.
There has been a raging war of words and a spirited debate on the judgment. The voices against what the Court did appear to be shriller.
The Constitution does not envisage two parallel centres of power: the elected government and the unelected Head of State. Such parallel power centres would result in chaos, not constitutional order. Legislation is the expression of the will of the ultimate sovereign, the people expressed through their elected representatives, the legislatures. When a Bill duly passed by the legislature is not promptly assented it will mean that the will of the people is neutralised and the policies and programmes of a democratically elected government are put on hold. That would be harmful to democracy and federalism and the larger public good and effectually make a mockery of the Constitution and constitutionalism. It is in that background that the Court has given the judgment and it is in that light it is to be seen and understood.
Objections are raised that the office/position of the President is exalted, no timeframe can be fixed for his actions, no directions can be issued to him, that the Court must respect the other co-equal wings and abide by the principle of separation of powers, that no words can be added to the Constitution and Art 142 could not have been invoked and that provision is being misused drastically. These protestations are uniformed and will not stand a closer look.
One non-negotiable maxim is: Be you ever so high, the law is above you. The President is, undoubtedly, a very exalted office. He/she is the Head of State. The judgment has not shown any disrespect to, or lowered the dignity of, that position. The Constitution has vested in the Court the power of judicial review and invested it with the function of constitutional interpretation and the responsibility of upholding constitutional values and enforcing constitutional limitations. The Constitution envisages that Bills duly passed by the competent legislature are promptly assented and become Acts. That is just what the judgment has sought to ensure. All public power, including constitutional power, has to be exercised reasonably and for public good. It is never exercisable arbitrarily or malafide. Setting timelines, as is clear from the judgment, is only as a yardstick for determining the reasonableness of the exercise of power. No amendment is made, no words are added to the constitutional text of Arts 111, 200 & 201. The judgment has only given effect to the will of the legislature. Art 200 is clear and emphatic that where a Bill is reconsidered and passed by the legislature and presented to the Governor for the second time, “he shall not withhold assent therefrom.” Thus the Governor has no other option in that circumstance. He cannot then reserve it for the consideration of the President. The only course of action open to him is to assent. It is against this background the Court held there was deemed assent. The only sequitur in the context was deemed assent. Recourse to Art 142 was not really necessary. However, Art 142 is a special provision vesting special, extraordinary power in the Court. The purposed constitutional plenitude of the powers of the Supreme Court to ensure due and proper administration of justice is intended to be coextensive in each case with the needs of justice and to meet any exigency. Giving effect to the will of the people is paramount in a democracy: that is enacting a Bill into law by according assent. That is complete justice in the case; what else can one think of. The Court did only that. The doctrine of separation of powers or its breach does not at all arise in the case. The judiciary has not encroached upon the domain of the legislature or the executive. It has only interpreted and given effect to the Constitution's provisions. That is the Court's primary job: if it had failed to do what it did, that would have been an abdication of its functions and a dereliction of its duties.
The constitutional position is settled that the President is only a ceremonial, titular head. He is a metaphor for the Union Council of Ministers. Further a variety of Presidential 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. Therefore any direction to grant assent is clearly permissible and legitimate.
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. It is also not correct to say that the Court has followed other Constitutions. They have been referred to only for analogy and pointing out differences and to show that the principle or idea has inhabited other minds in other jurisdictions too.
The debate seems to be more political than legal or constitutional. The judgment does not lay itself open to criticism as being constitutionally infirm. Rather it is a welcome development: a boost to constitutionalism and the rule of law.
Author is a Senior Advocate, Supreme Court of India. Views Are Personal.