Care has to be taken not to open door for unintended consequences
By K Raveendran
The three-month timeframe set by the ruling of a two-judge Supreme Court bench requiring governors and the President to take a decision on bills referred to them, now being re-examined by a 5-member constitutional bench headed by Chief Justice B R Gavai, appears to have entered increasingly precarious terrain.
The matter, which might have seemed settled at the time of the original judgment, has acquired a sense of fragility as larger constitutional principles come into play through the hearing of the presidential reference. The sustainability of the two-judge decision looks uncertain, not only because of the larger bench’s skepticism but also because of the inherent ambiguities in the April ruling that leave the door open for unintended consequences. At stake is not merely the efficiency of legislative processes but the balance between constitutional text, judicial creativity, and the risks of inadvertently creating new constitutional norms.
From the outset, the April 8 ruling was hailed in certain quarters as a corrective to the frequent complaints of governors indefinitely withholding bills passed by state legislatures. The order mandating that governors and the President must take a decision within three months was seen as injecting accountability and preventing executive arbitrariness. Yet, while the motive seemed aligned with democratic principles, the method employed—imposing a rigid timeline not explicitly found in the Constitution—was fraught with problems.
The larger bench, now seized of the presidential reference, has already flagged this tension, cautioning that mandating timelines could effectively amount to amending the Constitution. This argument rests on the foundational principle that the framers of the document, after extensive debate, deliberately refrained from imposing such strictures on the executive authorities concerned. Instead, they relied on conventions, political responsibility, and judicial oversight in extraordinary cases to check abuse. By attempting to read a fixed period into constitutional silence, the two-judge bench may have crossed a line that even well-intentioned judicial innovation cannot justify.
The larger bench has articulated a nuanced position. It acknowledges the legitimacy of courts intervening in cases of extraordinary delay, where the withholding of assent or inaction clearly subverts democratic will. Such intervention is remedial, aimed at addressing specific instances of constitutional breakdown. However, converting this case-specific remedy into a universal rule, applicable in every situation, raises conceptual difficulties. It risks the judiciary assuming a legislative function by effectively rewriting constitutional arrangements. The bench’s apprehension is that such an approach may weaken rather than strengthen the constitutional order, as it leaves open the possibility of future litigation challenging the judicially created timelines themselves, thereby generating more instability than resolution.
The April 8 judgment also suffers from ambiguities in its treatment of judicial review. It confirmed, rightly, that the governor’s conduct in keeping bills pending is not beyond judicial scrutiny. This assertion is in keeping with the principle that no constitutional functionary is immune from accountability, particularly when inaction undermines representative democracy. Yet the ruling failed to demarcate clearly the scope of such review.
Specifically, it is unclear whether the scrutiny extends only to the conduct—namely, the delay—or whether it can encompass the substance of the bills themselves. The judgment seems to suggest that once a bill automatically receives assent due to the lapse of the prescribed period, the governor’s prior inaction could be challenged in court. But does that open the door to also examining the content, intent, and constitutional validity of the bills in question? If automatic assent is conferred without substantive review, the possibility arises that legislations of dubious constitutional merit could slip through unchecked. Conversely, if courts were to involve themselves in scrutinizing content post facto, that could amount to a judicial veto, undermining the separation of powers.
The dilemma is further complicated by the absence of clear institutional pathways for resolving these disputes. The Constitution envisages a system of checks and balances where the governor, as the President’s representative, plays a limited but critical role in safeguarding constitutional propriety in state legislation. However, the misuse of this position by sitting indefinitely on bills has turned this safeguard into an instrument of obstruction. The judiciary’s instinct to correct this imbalance is understandable, but by imposing a rigid framework, the April ruling has risked upsetting another equilibrium—the line between judicial interpretation and constitutional amendment. The larger bench’s concern highlights the danger of judicial overreach dressed in the garb of expediency.
The practical consequences of this uncertainty are far-reaching. If the April 8 ruling stands, governors and the President would be compelled to act within three months, creating predictability and speeding up legislative processes. Yet, in doing so, it also diminishes the deliberative space that the framers may have intended, particularly in cases where bills raise complex constitutional or policy questions. If, on the other hand, the ruling is struck down by the larger bench, the status quo of indefinite delay would return, unless Parliament itself intervenes to legislate timelines, a politically fraught proposition. In either scenario, the deeper question remains unresolved: what should be the legitimate scope of judicial review when bills are delayed? Is the judiciary limited to assessing whether the delay is unreasonable, or can it go further and examine the nature of the bills themselves once assent is deemed?
The April ruling’s lack of clarity here risks inviting a flood of litigation. For instance, a bill that automatically becomes law after three months of gubernatorial silence could subsequently be challenged on grounds of constitutional infirmity. Courts would then be called upon to decide not only on the validity of the automatic assent mechanism but also on the substantive constitutionality of the law itself. This two-tiered litigation would add layers of complexity rather than providing the certainty that the ruling purported to achieve. It may also embolden governors to take a strategic back seat, knowing that contentious bills, once automatically assented, would face judicial hurdles anyway. Such an outcome could paradoxically strengthen the very problem the April ruling sought to resolve.
The ongoing hearings before the larger bench underline the difficulty of reconciling these tensions. Judicial creativity has long been a hallmark of Indian constitutional law, from the basic structure doctrine to expansive interpretations of fundamental rights. Yet there has also been a line, however faint, between interpretation and amendment. The debate over the April 8 ruling exposes the fragility of that line. By mandating timelines, the two-judge bench may have overstepped, however well-meaning the effort. The larger bench’s cautious approach reflects an awareness that constitutional silences must be respected, even if they occasionally permit executive obstruction. The risk of filling every gap through judicial fiat is that the Constitution gradually ceases to be the foundational text and becomes instead a patchwork of judicially added clauses. (IPA Service)
