Separation anxiety: SC's governor ruling and the broken compass?

Time of India

22-04-2025

Vivek Narayan Sharma is an Advocate (AOR) at Supreme Court of India with 25 years of core experience in litigation, arbitration, mediation. Known for resolving high-stakes disputes in a quick-time frame & representing industries, business leaders, celebrities, politicos; he also serves as pro bono Lawyer to enhance societal hues & spectrum. LESS ... MORE
A Constitutional Crossfire
In a political climate where outrage is currency and discourse has become a gladiator sport, the recent Supreme Court judgment on the role of Governors in Indian states has ignited a firestorm. Some of it deserved, much of it disturbingly disrespectful. Let's be clear that the criticism of judgments is not only permissible, it's vital in a constitutional democracy. But in this age of hashtags and heat, the dignity of disagreement is fast disappearing.
As a legal professional committed to both constitutional integrity and institutional balance, I find myself navigating dual discomforts, one, the content of the judgment, and, second, the conduct of its criticism.
The Heart of the Matter
The Supreme Court's pronouncement, while well-intentioned in its attempt to curb political misuse of gubernatorial powers, appears to slide into territory constitutionally reserved for the executive and legislature. It casts a long shadow over the doctrine of separation of powers – a principle not just etched into our constitutional conscience but vital for the functioning of our federal structure.
The role of the Governor, historically rooted in discretion yet bound by constitutional morality, is not meant to be judicially micromanaged. The Court's detailed directives, bordering on the prescriptive, could be perceived as judicial overreach, an intrusion into the political thicket it usually seeks to avoid. Are we heading towards a judiciary that increasingly interprets, intervenes, and ultimately imposes?
One may question, 'Whether the Supreme Court, in trying to restrain arbitrary action, ended up expanding its own discretion?
Irony, after all, is not always poetic, it can also be constitutional.
A dissent without Decency
Yet, for all its debatable merit, the judgment deserves to be challenged with substance, not slander. What we are witnessing instead is an all-too-familiar descent into personal attacks, mocking memes, and ideological slurs. This is not critique, it's combat theatre.
We forget that the judiciary, unlike the political class, cannot reply with press conferences or TV debates. It can only speak through its judgments. The robe, unlike the kurta, comes without a mic.
As students of the Constitution, as officers of the court, and more importantly, as citizens, we must protect the sanctity of the dialogue. We can dissect reasoning, challenge precedent, and even demand review, but let us not vandalize the idea of justice with our vocabulary.
Method in the Madness
There is a method to every institution's mandate. The Governor's discretion must be exercised within constitutional bounds. But those bounds are meant to be checked through political accountability and legislative response, not judicial substitution.
What the judgment perhaps missed is the nuanced dance of democracy – a Governor's act, even if controversial, must be tested by political consequence, legislative resistance, or administrative remedy. A courtroom cannot always substitute the corridors of power.
This does not mean the judiciary must abdicate. It means it must calibrate. The Court has, in the past, risen to moments of great constitutional challenge with visionary clarity, be it Kesavananda Bharati or the S.R. Bommai case and other such constitution-politics overlapping cases. It must now revisit that clarity, not cloud it with activism disguised as adjudication.
Let's Criticize Like Constitutionalists
To critique the Court is not to demean it. To defend its dignity is not to accept its every decree. We must remember that the strength of our republic lies not just in robust institutions but in responsible citizens.
This is not a call for silence. It is a call for civility.
Let our pens be sharp, but not shallow. Let our arguments sting, not stab. And let our dissent be deliberate, not destructive.
For the Constitution is not just a book of rules, it is a culture of respect and a way of life for every Indian.
Time to Revisit the Governor Verdict: A Case for Constitutional Review
In my view, the Supreme Court's recent judgment on the role of Governors warrants a thorough review and reconsideration by a Constitution Bench. The ruling raises several constitutional concerns that merit judicial introspection.
Withholding of Assent and Reservation for the President:
The Court held that the Governor's act of reserving re-enacted bills, without amendments, for Presidential assent was illegal. In paragraph 211, it declared such action as void ab initio, since the bills were reconsidered by the legislature and presented without change.
However, this reasoning appears flawed. The Court drew a distinction between amended and unamended bills for the purpose of Presidential reservation. Such a distinction finds no support in Article 200 of the Constitution. The provision makes no such categorization, and this interpretive innovation creates grounds for a robust constitutional review.
Judicial Timelines for Executive Action:
The Court, in In paragraph 250, has imposed rigid timelines, mandating that Governors act on bills within one month and the President decide within three months. These timelines, enforced through Article 142, are significantly inspired by practices in Pakistan. However, drawing parallels with Pakistan—a nation widely seen as struggling with constitutional stability and the rule of law—is contextually misplaced and constitutionally unsound. India, as a mature constitutional democracy governed by the rule of law, cannot borrow precedents from jurisdictions where democratic institutions remain fragile.
Moreover, using Article 142 to legislate timelines for executive action, without constitutional amendment or parliamentary debate, stretches judicial authority and disrupts the careful equilibrium between the branches of government. This overreach alone is a compelling ground for review by a Constitution Bench.
While judicial efficiency is desirable, prescribing legislative or executive timelines under judicial authority treads dangerously close to rewriting constitutional architecture. This is a strong ground for seeking reconsideration.
Limitation on Governor's Powers:
The Court rightly clarified that a Governor cannot exercise a 'pocket veto' under Article 200. This reading aligns with the constitutional scheme and is welcome. Article 142 and Separation of Powers:
The Court also invoked Article 142 to declare that ten bills had become law from the date they were originally presented. While such power exists for doing 'complete justice,' its use here arguably infringes the doctrine of separation of powers. The judiciary cannot assume legislative functions under the guise of constitutional correction.
This judgment, while aiming to uphold constitutional discipline, inadvertently disturbs the federal balance by excessively narrowing the discretionary space of Governors. While it seeks to curb misuse, it may also constrain legitimate executive functions.
While the Parliament need not amend Articles 200 or 201 immediately, there is a strong likelihood that this judgment will be stayed and referred to a larger bench. If not, legislative intervention may become necessary to prevent distortions in the functioning of the executive and Parliament.
In sum, the judgment is well-meaning but constitutionally debatable. It's a perfect candidate for respectful legal review, not political mockery.
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Views expressed above are the author's own.