The recent Supreme Court verdict rendered in The State of Tamil Nadu v The Governor of Tamil Nadu and Anr is being widely criticised for alleged judicial overreach or a judicial attempt to effectively amend the constitution. In its ruling, the Supreme Court interpreted the two significant Constitutional provisions, viz. Articles 200 and 20,1, which have been at the centre of the tussle between governments and Governors in many states.
The present judgment arose out of a long-standing tussle between the Tamil Nadu government and the Governor, wherein the latter had reserved 10 Bills passed by the state legislature for the assent of the President. A division bench of the Supreme Court, comprising Justices B Pardiwala and R Mahadevan, examined the concerned provisions and prescribed some time limits to be followed by the President and the Governor in exercise of their powers under Articles 200 and 201. A critique of the judgment was published in the Verdictum, in which the legality of the ruling was questioned on certain grounds.
The issue could have been dealt with by a larger bench
The Verdictum article argues that the issues raised before the Supreme Court regarding the ambit of the powers of the President and the Governor should have been dealt with by a Constitutional Bench since the issues involved a significant question of law. It questioned the validity of the judgment delivered by a division bench based on Article 145(3). It pointed out that matters involving the interpretation of the provisions of the Constitution, which can have far-reaching effects, should be dealt with by a larger bench of the Supreme Court so that diverse and larger judicial opinions could be included in that.
Does the verdict amend the Constitution?
The judgment is also being questioned on the ground that since the Supreme Court has prescribed time limits to be read into the concerned provisions, which do not contain clear timelines, does this amount to an amendment of the Constitution? The article reminds that the Supreme Court is empowered to interpret the existing provisions of the Constitution and cannot amend them by adding words to them. The power to amend the Constitution lies with the Parliament under Article 368 of the Constitution. It argues that by adding specific time limits to be followed at different steps of the procedure provided under Articles 200 and 201, the Supreme Court has transgressed the limits of its power, has stepped into the shoes of the central legislature and has amended or modified the Constitutional provision. This would amount to a violation of the principle of separation of powers.
“Through the present Judgment, the Apex Court has added a time limit and a provision for deemed assent in Articles 200 and 201. The Constitution of India does not provide for the amendment of the Constitution in a manner other than through Article 368 of the Constitution. In the present case, the incorporation of the additional terms to Articles 200 and 201 assumes the nature of an amendment to the Constitution,” the article says.
Rule of interpretation
Invoking the rules of interpretation, the article says that every word used in the Constitution has a definite purpose and meaning. Therefore, if the concerned provisions did not originally have any express time limit, the Constitution makers would have intended so. Articles 200 and 201 are part of the Constitutional features that provide the unitary hue to the governance system. The purpose of these provisions is to keep a check on the powers of state legislatures and to prevent them from passing any laws that might threaten the unitary nature of the system of governance. Therefore, before adding to or modifying the provision, the court should have carefully examined what the intent of the constitution makers was behind creating the provisions.
Violation of Artcile 361
In its judgment, the Supreme Court ruled that if the President or the Governor fail to comply with the time limits fixed by the court, then the concerned state government can approach the Supreme Court and seek the issuance of the writ of mandamus. “Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time limit as has been prescribed by us in paragraph 391 of this judgment, then it shall be open to the State Government to seek a writ of mandamus from this Court,” the Court said.
The article says that the Supreme Court has violated Article 361(1) in making the actions of the President and the Governor under Articles 200 and 201 subject to judicial review. Article 361 (1) provides that the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
In the concluding remarks, the article highlights how the judgment could have significant implications for centre-state relations. It adds that the verdict could result in the creation of two categories of legislations-one assented by the Governor or the President, and the other created by court intervention.
