As former Chief Justice of Bharat N V Ramana aptly observed, “Lakshman Rekha drawn by the Constitution is sacrosanct”, these words resonate deeply in the context of Bharat’s parliamentary democracy, where the delicate balance of power among the legislature, executive, and the judiciary (three organs of the State) is crucial to the well-functioning of the State. The concept of separation of power, one of the basic features of our Constitution, ensures that each organ functions within its designated sphere, without encroaching upon the domain of others. In this context, the following view of former Justice Markandey Katju needs special mention who observed- “…Under the Constitution, the legislature, the executive and the judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the State do not encroach upon the domain of another and confine themselves to their own, otherwise the delicate balance in the Constitution will be upset…The judiciary must therefore exercise self-restraint and eschew the temptation to act as super legislature…”
The above view of the former Justice Katju is very pertinent in the present scenario of the country, especially after the Hon’ble Supreme Court’s judgment in the case of State of Tamil Nadu v. The Governor of Tamil Nadu and Another. After this judgment, debate over separation of power, judicial activism, judicial overreach, and the sanctity of the Lakshman Rekha (fixed area under which the legislature, executive and judiciary are permitted to function independently and without encroachment from the others) has started once again. Vice-President Jagdeep Dhankhar recently remarked about the judiciary acting as “super Parliament” and firing “nuclear missiles” at democratic forces. Several other well-known personalities are making critical remarks on this judgment, which, according to them, disturbed or has the potential to disturb the balance of separation of power.
The Supreme Court, in this judgment, held that the action of the Tamil Nadu Governor, Dr RN Ravi, withholding assent on ten Bills, the oldest of them pending since January 2020, and reserving them to the President after they were re-enacted by the State Legislature, is illegal and erroneous in law and liable to be set aside. The Court also held that the ten Bills would be deemed to have received the assent of the Governor when they were presented in the second round after they were passed again by the State Assembly. The Court also fixed the timeline for granting assent to a Bill by the Governor and President on the reservation of a Bill to him.
The judgment in this case stemmed from the fact that the Governor of Tamil Nadu had delayed, withheld or refused assent to several Bills passed by the State legislature, effectively stalling the legislative will. The judgment raises several pertinent questions that critics pose/might pose. Firstly, the allegation of the Governor’s inaction, omission, delay, and failure to assent to Bills under Article 200 or 201 of the Constitution was raised by the State of Tamil Nadu before the Supreme Court by filing a writ petition under Article 32. Writ petitions are typically filed under this Article when there is a violation of “fundamental rights”, and these rights are claimed against the “State” (as defined under Article 12 of the Constitution), which includes the President, Governor, and State Government, among others. It is argued that a writ petition under Article 32 may not be the most appropriate remedy in this case, given that the parties to the dispute are themselves organs of the “State” (within the meaning of Article 12 of the Constitution), rather than individuals alleging violation of their fundamental rights against the “State”. It is argued that filing a writ petition under Article 32, in this case, is akin to one branch of the “State” litigating against another rather than the accepted practice of citizens or non-citizens seeking enforcement of their fundamental rights against the “State”. Critics also point out that, even if one considers the State Government to be representing the people of Tamil Nadu before the Supreme Court, invoking the jurisdiction under Article 32 still seems unjustified, as this Article comes into play only when there is a violation of fundamental rights. However, the State of Tamil Nadu filed the writ petition for alleged inaction, omission, delay, and failure by the Governor and the President, as the case may be, in granting assent to the Bills under Articles 200 and 201 and not for violation of fundamental rights. Its plea that the Governor’s inaction violates the fundamental rights of the residents of Tamil Nadu to be regulated by State-made laws is not convincing, especially after giving a closer look at the contents of the Bill related to making the Chief Minister the Vice-Chancellor of the State universities as it does not even remotely violate the fundamental rights of the people of Tamil Nadu. In such a scenario, it could be argued that the State might have been better advised to invoke the jurisdiction of Article 226 of the Constitution and approach the High Court, which can issue writs and other orders not only for violation of fundamental rights but also “for any other purpose”. Alternatively, if the State Government wanted to approach the Supreme Court directly, then it should have come through Article 131, which gives original jurisdiction to the Supreme Court to hear cases involving disputes between two or more States or between State(s) and Union, or between one and other branches of the government.
The judgment has also sparked debate about the composition of the bench that heard and decided the case. Critics might question how a case involving interpretation of the Constitution was heard and decided by a two-judge bench (namely- Justice J.B. Pardiwala and Justice R. Mahadevan), rather than a Constitutional Bench comprising a minimum of five judges, as mandated by Article 145(3) of the Constitution. This departure from the usual practice could have implications for the precedential value of the judgment and its potential impact on constitutional jurisprudence.
Perhaps the most glaring aspect of the judgment, from the perspective of separation of power and encroaching the “Lakshman Rekha”, is the Supreme Court’s decision to “deem” the ten Bills as having received assent, and thereby making them laws. Enacting laws is the core function of the legislature while giving or withholding assent is an executive function vested in the President or Governor. By stepping in to grant approval through judicial order, the Court arguably blurred these distinct functions of the different organs of the State. The judgment effectively made the significance of the Governor, and even the President, redundant in the legislative process, raising concerns about the erosion of the constitutional roles of these offices. Generally, if a Governor unjustifiably withholds assent, the practical remedy lies in the political realm- the Chief Minister and the council of ministers could create pressure through public opinion, or in extreme cases, the Governor could be replaced by the Union. Alternatively, the State Government could wait for the end of the Governor’s term, allowing the issue to resolve itself through the natural course of constitutional processes. By judicial intervention in granting “deemed assent” to the Bills and making the laws, the Court may have altered the traditional dynamics of such disputes, potentially upsetting the balance of power between the constitutional functionaries.
Another striking part of the judgment is the way in which Article 142 of the Constitution (which allows the Supreme Court to pass orders for doing complete justice) is used in this case. After nullifying the Governor’s and the President’s actions in withholding and reserving Bills, the Court should have simply directed them to give assent to those Bills. Instead, the Court used Article 142 to “deem” that the Bills had already received assent, holding that the ten Bills are deemed to have been assented to by the Governor on the date they were presented to him after being reconsidered (i.e. on 18 November 2023). This exercise of power is rare and has significant implications.
In an alternative approach, writ of mandamus could have been issued, directing the Governor to pass the Bills by giving his assent, rather than the exercise of powers under Article 142, which should be exercised to do “complete justice” when there is no alternative provision of law to address a compelling situation and given that the Constitution itself provides a remedy in the form of a writ of mandamus to compel the government to perform its legal duties, issuing such a writ might have been a more appropriate course of action.
It is argued that by voiding the President’s rejection of Bills, the Supreme Court has effectively entered into the Union Executive’s constitutional role. Under Article 201 of the Constitution, the President’s assent or dissent/refusal is the final step for reserved Bills. By overturning the President’s decision and essentially declaring that those decisions “do not survive”, the Court positioned itself above the highest executive authority. This aspect of the judgment has disturbed many, including those who otherwise support and favour judicial review and judicial activism. Notably, the President acts on the aid and advice of the Union’s council of ministers (Article 74), which means that the Central Government’s ‘will’ was effectively negated by the Court’s order in this case, raising concerns about the limits of judicial power.
Another aspect of potential overreach is the Supreme Court’s prescription of specific timelines for the Governor and the President (constitutional functionaries) to act under Articles 200 and 201. By doing so, the critics argue that the Court effectively amended the Constitution by judicial fiat. The Constitution itself left the matter of timeframes open, which could be interpreted as deliberate flexibility. However, the Supreme Court felt compelled to step in with what it termed “determinable judicial standard(s)” for a reasonable time. It raises questions about the Court’s role in filing constitutional gaps and whether such intervention might be seen as an interpretation to the provisions of the Constitution or an encroachment on the constitutional framework.
To sum up, as the separation of power is the cornerstone of the Constitution, the recent judgment in the case of State of Tamil Nadu v. The Governor has sparked a crucial debate about it and the limits of judicial activism. While the judiciary has a vital role to play in ensuring that the other branches of the government function within their constitutional domains, it is equally important for the judiciary to respect the “Lakshman Rekha” and avoid overstepping its bounds. The use of Article 142 in this case has raised concerns about judicial overreach and diminishing the constitutional roles of the Governor and the President. Notably, while the Court’s effort to prompt the Governor and the President to act within a reasonable timeframe on bills passed by the legislature- reflecting the democratic will of the people- is commendable, the methodology employed has been questioned by many (including Vice-President Jagdeep Dhankhar), for potentially crossing into judicial overreach. In response to this judgment, President Droupadi Murmu has sought the Supreme Court’s advice on fourteen questions in regard to the assent of State Bills by the Governor and the President under Articles 200 and 201. The outcome of this presidential reference will likely provide valuable insights into the Hon’ble Court’s perspective on the matter, shaping the future contours of inter-institutional dynamics in the country.
By navigating these complexities and ensuring that each branch functions within its “Lakshman Rekha” (designated sphere of work for each branch) while respecting the principles of separation of power and check and balance, we can uphold the rule of law, promote accountability of constitutional functionaries, and ensure that our democracy remains robust and resilient.
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