The Tamil Nadu Governor Case: Overstepping or stepping up?

Tamil Nadu Governor RN Ravi. (File pic)

By Amit Pai

A remarkable decision of the Supreme Court calling Governor RN Ravi to constitutional accountability has not only given room for public debate, but also caused considerable flutter all around. In the initial years of the life of our Constitution, the Court was circumspect about their powers to bring other constitutional institutions to account – other than by the specificity of the letter of the Constitution. However, the experience of the working of the Constitution graduated the Court’s interpretation of the Constitution from the constitutional text to the spirit of the constitution – or constitutionalism. Not surprisingly, every time the Court interpreted the Constitution in furtherance of constitutional goals, the Court has been accused of judicial overreach in public debate.

The role of the Governor (or the President) in our constitutional scheme is well defined – both in the letter of the Constitution, and various pronouncements of the Court. Yet, time and again, Governors have acted in manners which are constitutionally questionable – like Governor Ravi who abdicated his solemn duty of assenting to bills passed by the legislature in terms of Article 200.

Backstory to the ‘deemed assent’

The framers reserved to the Governor the power to send a bill back to the Legislature for reconsideration – but also mandated that once the bill was returned by the Legislature, he “shall not withhold” assent. The Governor could also refer such a bill to the President of India – who functions on the aid and advise of the Prime Minister and his cabinet. Governor Ravi’s inaction at performing his constitutionally mandated duty is the centre of the judicial pronouncement that has raked up debate on the powers of the Court principally on two aspects – firstly, mandating a time limit on the performance of the constitutional mandate on the Governor and President, and secondly, the exercise of powers under Article 142 declaring that assent of the Governor was deemed to have been given qua the 12 bills in question.

Logic undergirding an extraordinary measure

Perhaps, the discourse should revolve around why the Court took these extraordinary measures, as opposed to the measures themselves. Extraordinary circumstances give rise to extraordinary outcomes, and this judgment is no different. Indisputably, the expression of “the will of the people” is in the legislature – constituted by a direct election of, by and for the people. The very root of that cherished ideal of democracy is undermined if an unelected appointee holds the power to defeat what the legislature has sought to enact.

Surely, the framers of our Constitution – neither in letter nor in spirit – intend “a pocket veto” to the Governor amounting to a “tyranny of the unelected” making the constitutional scheme unworkable. Obviously, the framers of our Constitution did not think that a constitutional institution such as the Governor would ever put a spoke in the wheels of the working of our Constitution, and therefore there was no need for specification of time for performing this solemn duty. After all, the Governor functions on the aid and advise of the Chief Minister and her cabinet. How wrong they were!

Plugging loopholes through interpretation

Constitutional experience has led the Court to fill in the gaps, which the framers of our Constitution did not envisage, by the means of constitutional interpretation towards the ends envisioned by the framers. One such being the cherished basic structure doctrine, which saved our Constitution even in the dark days of the Emergency half a century ago. It would be ludicrous to imagine that the framers of our Constitution thought it fit that the Governor or the President would endlessly avoid performing their constitutional duty of assenting to legislative initiatives of the elected representative, and thus the Court, stepped in in furtherance of the smooth working of the Constitution on the judicial principle that any action by any authority had to be within a reasonable time. Surely, the Court cannot be faulted for mandating a creature of the Constitution to act as per the constitutional scheme!

Ravi’s conduct catalysed the use of Article 142

The exercise of the power under Article 142 is often met with scepticism, since the power “to do complete justice” has received criticism of usurpation of spheres of constitutional working reserved for the Executive or the Legislature. But what also needs attention is the inaction of one constitutional functionary paralyzing the working of the constitutional mechanism. The most disturbing part of the judgment of the Court is the categoric finding that Governor Ravi “has failed in showing due deference and respect to the judgments and directions of this Court”. By oath, a Governor is mandated to “uphold the Constitution” and not obstruct its working. Howsoever high you may be, the Constitution is above you. The Governor is not above the Constitution, and his actions cannot be sans accountability.

It is the obstinacy of Governor Ravi that has caused extraordinary circumstances compelling the exercise of powers under Article 142, declaring deemed assent to the bill, because Governor Ravi was found to be “lacking in bonafides”. After all, the Court cannot abdicate its principal purpose of existence – the upholding of our democratic Constitution.

In his last speech to the Constituent Assembly, Dr. BR Ambedkar would prophesize that the working of a constitution depended on the people who were called to work it. In the initial days of the Supreme Court’s existence, the Court went by the letter – but gradually moved towards constitutionalism based on the experience of its working and in furtherance of the cherished principles. Absolutism is unknown to our constitutional structure. And the Court can surely exercise judicial review powers to bring institutions to account, without substituting the institution itself. The Court has seldom taken a “nuclear missile” option as this judgment has been taunted to be – but the Court has duly followed the “No First Use” Policy that India follows. If only Governor Ravi would have followed the constitutional text and well-established constitutional conventions, this matter would not have required judicial intervention. After all, extraordinary circumstances give rise to extraordinary outcomes.

(Amit  Pai  is an Advocate on Record, The Supreme Court of India. Views are personal and do not represent the stand of this publication.)