In Tamil Nadu case, SC proper to curb governors’ powers however went overboard with instructions to president

Second, it has exercised its powers underneath Article 142 to carry that the payments the TN governor didn’t assent to have change into regulation. Third, it has given itself the facility to challenge a mandamus to the president when a invoice has been referred to the president by the governor.

Of those three unprecedented acts, the primary two are welcome — they’re the Court docket’s newest try to test the unconstitutional behaviour of a governor who behaved extra like a colonial viceroy than a constitutional authority.

The circumstances by which the Tamil Nadu authorities was pressured to convey this case have been extraordinary. The governor merely refused to provide assent to 12 payments lawfully handed by the state legislature. When pushed by the courtroom in an earlier spherical of litigation, he referred two of the payments to the president for her assent and easily returned 10 to the state legislative meeting with out giving assent. When the ten payments have been handed once more within the Meeting, he referred all of them to the president for her assent elevating numerous grounds of constitutionality.

One hopes the Court docket’s actions will ship out a message to different governors as properly and provides reduction to future state governments. Nevertheless, the Court docket giving itself the facility to challenge a mandamus to the president does elevate some disturbing questions.

The facility to challenge a writ of mandamus has its origins within the energy of the British monarch to direct the efficiency of a authorized responsibility. Courts exercised this energy to get officers to hold out their duties when no different authorized treatment was obtainable to the individual aggrieved. In India, whereas courts have used it for a variety of functions, that is maybe the primary time that the Court docket has given itself the facility to take action within the context of the president.

The President of India isn’t any odd public official. She is the pinnacle of state and is in most methods just like the British monarch. The Authorities of India is carried out in her identify, and he or she is an emblem of constitutional rule in India. Just like the British monarch, she is meant to behave solely on the “help and recommendation” of the prime minister and the Council of Ministers. As such, she has much less discretion than the common district Justice of the Peace within the nation.

A mandamus to the president would subtly change the constitutional place that the president acts solely on the help and recommendation of the prime minister and the cupboard. It might imply that in sure circumstances, the president additionally acts on the order of the Court docket. This raises a discomfiting query: Can the Court docket direct the president to disregard the help and recommendation of the PM and the cupboard?

A studying of the judgment means that this isn’t essentially the case. The Court docket is barely directing the president to behave, to not act in a sure approach. Even then, when no help and recommendation is forthcoming, the courtroom is creating a brand new constitutional scheme for the president. May presidential defiance of such a directive imply that the SC may probably haul up the president for contempt of courtroom? A tough query, particularly because the president can’t be made personally liable in courtroom for her actions.

This new constitutional place is worrisome. Extra so when it has come from a two-judge bench of the Court docket as a substitute of a bigger Structure Bench as a case of this significance merited. Whereas nobody doubts that the Court docket was anxious to curb the governor’s discretion not directly, one may argue that it has gone overboard in proscribing the president’s as properly. The “pocket veto” of a president has not at all times been used for malicious functions — Giani Zail Singh used it to push again in opposition to the Rajiv Gandhi authorities’s controversial postal payments.

And but, one can not discover fault with the courtroom for appearing to reply to a breakdown in constitutional order. It’s not simply governors’ intransigence that the courtroom has needed to take care of. One other bench of the SC is contemplating petitions looking for a route to the Telangana speaker to resolve disqualification petitions in time with out rendering the anti-defection regulation moot.

In such circumstances, it’s tough to be harsh on the SC for going overboard. It’s responding to a common, wider disregard of constitutional norms for partisan issues. An SC that merely throws up its arms in helplessness is way much less preferable in such conditions.

The courtroom is conscious of the unprecedented nature of its judgment on this case. One will get a way of this from the judgment’s citation of B R Ambedkar’s well-known final speech within the Constituent Meeting, the place he identified that irrespective of how good a structure, its success or failure will depend on whether or not those that are referred to as to work it are good or unhealthy.

In 2025, one can say that the risk to the Structure comes not from makes an attempt to amend it, however from makes an attempt to render it irrelevant.

The author is a co-founder of the Vidhi Centre for Authorized Coverage. Views are private