No More Governor Raj : Why Supreme Court's Judgment In TN Governor's Case Is Historic?

Like 'Bulldozer Raj', 'Governor Raj' was a pernicious trend which was torpedoing the Constitution, although in a manner more imperceptible. Governors, who are not more than Constitutional figureheads, were increasingly interfering with the administration of State Governments, and creating roadblocks. A recurring phenomenon was Governors sitting indefinitely on Bills passed by State Legislatures, neither granting assent nor returning them with reasons, effectively stalling the legislative process. In States like Tamil Nadu and Kerala, the bills remained in limbo for as long as three to four years. Strikingly, these delays occurred only in the States governed by parties opposed to the one in power at the Centre, raising concerns that the Union Government was using the Governor as an agent to meddle in State affairs. At stake were two foundational constitutional principles - the primacy of the legislature as an expression of the people's will, and the federal structure of governance.

The Supreme Court's response to this situation was cautious and incremental. Mindful that it was dealing with a high constitutional authority, the Court initially chose the path of deference and tried to diffuse the situation using its wise counsel. Therefore, in April 2023, in the case against the Telangana Governor, the Supreme Court, instead of passing any categorical direction, reminded the Governor that Article 200 of the Constitution obliged that a decision on the Bill has to be taken “as soon as possible”. However, on finding that this advice was not being heeded to, a few months later, in November 2023, the Supreme Court gave a stronger response in the Punjab Governor's case, sternly observing in its judgment that Governors, as unelected heads, cannot veto the legislature by simply withholding assent. If they choose to withhold assent, then they must promptly return the bills to the legislature with reasons, the Court stated in this judgment.

The Court hoped that its judgment in the Punjab Governor case might send a strong message to the Governors of Tamil Nadu and Kerala, who were then facing writ petitions filed by the State Governments in the Supreme Court over the delay in clearing bills. In fact, the Court once orally said that the Kerala Governor should read the judgment in the Punjab Governor case and act accordingly.

To circumvent the judgment in the Punjab Governor case, a new device was invented : reference to the President. Thus, the Bills, which were kept pending for several months, were referred to the President by the Governors of Tamil Nadu and Kerala. That is one of the reasons why the Supreme Court in the judgment in the TN Governor case observed that the Governor acted without bona fides. Because, the Bills were sent to the President on November 28, 2023 within a few days the judgment in the Punjab Governor case was uploaded. Also, the very same Bills were by that time re-enacted by the Assembly.

It is in this backdrop that we must understand the Court's judgment in the Tamil Nadu Governor's case (State of Tamil Nadu vs Governor of Tamil Nadu and others, pronounced on April 8, 2024, by bench of Justice JB Pardiwala and Justice R Mahadevan). The Court's assertiveness was not by choice, but by necessity — a response to the repeated, brazen disregard of its earlier appeals. As explained above, its response was graded. To awaken those pretending to be asleep, the Court had no choice but to drop a bombshell.

The Court was confronted with a situation where the gaps and silences in the Constitution,  left by the framers in the hope that those occupying high offices would act with sagacity, were being exploited to undermine the spirit of democracy. The Tamil Nadu Governor's argument was that since he merely declared the withholding of the assent and did not expressly send the bills back to the Assembly, the Assembly could not re-enact them. The Court rightly identified the danger in accepting this argument- it would allow the Governor to engineer an indefinite stalemate on the legislative process. It must be noted that the very same argument was rejected in the Punjab Governor's case. Yet, the TN Governor parroted the very same argument. Therefore, the Court held that withholding of the assent is not an independent act in itself and it has to be coupled with the sending back of the bills to the Assembly as per the proviso to Article 200. Such an interpretation is necessary to ensure that the legislative process does not grind to a halt.

The Court also realised that the reference to the President was a newly discovered mischief to stall the bills. To ensure that this route is not abused, the Court was compelled to delineate the contours of this power. It held that the reference to the President has to be done as the first option itself and cannot be done once the Bills have been re-enacted by the Assembly. This is an interpretation which flows straightly from a conjoint reading of both proviso of Article 200.

The Court explained that the Governor cannot be allowed to become a "super constitutional figure" and "collude with the Union Cabinet".

If the power to withhold assent to bills or to reserve them for the consideration of the President is construed as falling within the exclusive discretionary domain of the Governor, who would be free to decide a course of action notwithstanding the aid and advice of the Council of Ministers, it would have the potential of turning him into a superconstitutional figure, having the power to bring to a complete halt, the operation of the legislative machinery in the State. The Governor cannot be vested with such a power, the exercise of which would enable him to collude with the Union Cabinet and ensure the death of any and all legislation initiated by the State.

Finally, the most important takeaway from the judgment- the laying down of the strict timelines for the Governor and the President to act on the Bills as per Articles 200 and 201 respectively. This was crucial to ensure that there was no indefinite 'pocket veto' over the Bills. Without enforceable timelines, its judgment risked becoming a paper declaration without real-world consequences, as the previous instances of transgressions showed. The Court's affirmation that the Governor has no discretion in the exercise of powers under Article 200 and that he has to act as per the aid and advice of the State Council of Ministers also came as a timely reminder.

The Court's declaration of deemed assent for the ten bills was extraordinarily bold. Once it was found that the reference of the Bills was unconstitutional, this was the natural and logical consequence. Otherwise, the judgment would have remained only academic, without actual relief to the affected party. The Court also noted that the Governor has been repeatedly violating the Supreme Court's directives and has been acting without bonafides. It went to the extent of stating that the Governor cannot be trusted anymore.

"The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides. There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court. In such a situation, it is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by us in this judgment. Article 142 empowers this Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, we deem it absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers. No meaningful purpose would be served by keeping the bills, some of which have already been pending for incredulously long periods, pending for more time. Therefore, we deem the assent to have been granted.

'There is no unfettered power' & 'Nobody is above the law' - these two hallowed principles permeate the judgment. Yes, the Court's directions were extraordinary and unprecedented, which some may argue to be verging on an overreach. But the Court's intervention must be viewed in the context of an equally extraordinary constitutional crisis, one never envisaged by the Constitution's framers. The indefinite withholding of assent by Governors is a practice that strikes at the very root of representative democracy. In that light, the Court's intervention was not just warranted but necessary. After all, the Courts' directions are not causing any prejudice to anyone. They only further the cause of electoral democracy and enhance the accountability of constitutional offices.