Contestatory Federalism As A Means To Ensure Constitutional Stability

Governors v. Their Governments

The Governors of Opposition-ruled states have been at loggerheads with their Governments and the Supreme Court has come to be an arbiter of the dispute. The Supreme Court recently concluded arguments in the case instituted by the Tamil Nadu Government challenging the delay of the Governor in granting assent to the Bills. In Tamil Nadu's case, the Governor has sent Bills to the President even though the Tamil Nadu Assembly had discussed and re-presented the same Bills to the Governor. The states of Kerala and West Bengal have also knocked at the doors of the Supreme Court recently, which are pending. The Kerala Government has challenged the “endemic delay” by the Governor in granting assent to the Bills passed by the Kerala Assembly. Kerala has sought the Supreme Court to frame guidelines on circumstances under which Governor can reserve Bills for President's consideration. Even though similar issues have been raised by Punjab and Telangana on earlier occasions, the Supreme Court stopped short of setting a timeline to the Governors for taking decisions on the Bills. In Tamil Nadu's case, the Supreme Court is presented with the golden opportunity to set the system right by filling the gaps and silences left by the framers of our Constitution.

On a few occasions, the Supreme Court has reprimanded the Governors for their inactions. When K. Ponmudi was refused to be sworn-in as Minister by the Tamil Nadu Governor, the Supreme Court immediately acted to clear the way by questioning the Governor's actions. The Punjab Government had approached the Supreme Court when the Governor refused to summon the Budget Session of the House in February 2023. After a nudge from the Supreme Court, the Governor undertook before the Supreme Court act in accordance with the aid and advice of the Chief Minister.

The Supreme Court has engaged in constitutional dialogue to resolve issues between constitutional authorities. When Kerala's suit against the Centre challenging the curbs imposed on borrowing limit was taken up, the Supreme Court nudged the parties to sit across the table and resolve the issue, but the effort was in vain. The Supreme Court noted the importance of the dialogue in Union of India v. Mohit Minerals (P)Ltd. (2022) wherein Justice D.Y Chandrachud opined – “Indian federalism is a dialogue in which the States and the Centre constantly engage in conversations. Such dialogues can be placed on two ends of the spectrum — collaborative discussions that cooperative federalism fosters at one end of the spectrum and interstitial contestation at the other end.”

Role of the Supreme Court in ensuring level-playing ground

The Contestatory Federalism can be traced to Article 131 of the Constitution which confers the Supreme Court with jurisdiction “in any disputes” between the States and the Central Government. The Kerala Government had instituted a suit against the Centre against its decision to impose Net Borrowing Ceiling limiting its borrowings is violative of Article 293. The West Bengal Government has filed a suit in 2021 raising the question as to whether after withdrawal of the consent under Section 6 of the Delhi Special Police Establishments Act, the CBI can continue to register and investigate cases in its area in violation of the provisions of Section 6 of the DSPE Act. The states of Tamil Nadu and Karnataka have approached the Supreme Court against the Union Government, claiming that the Union was withholding the relief funds for natural calamities. The Delhi Government (under the previous dispensation) had initiated several proceedings covering a range of administrative and governance issues. States have shown consistent trust in the Supreme Court to settle various complex issues. However, the question is as to whether the Supreme Court has acted quickly enough in all the cases in ensuring level-playing field, without rendering it infructuous. Crucial issues in the dispute between the Delhi Government and the Centre were decided belatedly. The withdrawal of statehood from Jammu & Kashmir undermined the principles of federalism. However, this issue was not decided by the Supreme Court until 2023 allowing the illegality to be perpetuated. Moreover, the issue not considered on its merits and was brushed aside by the Constitution Bench on a mere undertaking of the Centre that the full statehood will be restored, which has not been done till date.

Constitutional stability v Constitutional wandering

Madison theorizes that the constitutional stability will be achieved with constant contestations between the constituent units of the Government. However, Gardner in his seminal work rebuts and states that the contestations could lead to constitutional drift or what he calls – constitutional wandering. The Supreme Court, under judicial review, has been able to bring about constitutional stability in numerous cases acting as an impartial arbiter. The judgments of the Supreme Court from Shamser Singh v. Union of India (1974) through S.R Bommai v. Union of India (1994) to Mineral Area Development Authority v. Steel Authority of India (2024) have upheld the rights of the states. To borrow words from Justice V.R Krishna Iyer, since the Constitution is a declaration of articles of faith and not a compilation of laws, the trust reposed on the Supreme Court by the sub-national units to resolve disputes in a time-sensitive manner would go a long way in bringing about constitutional stability. More and more states raising issues with the Centre before the Supreme Court is Contestatory Federalism at play, but it is also the sign of a healthy federalism. It is through such judicial interventions that the balance of power is maintained, preventing the Centre from overreaching their constitutional boundaries.

Mukund P Unny is an Advocate on Record in the Supreme Court of India. Views are personal.