OPINION | Two Constitutional dramas, one deep anxiety

The Constitution contains its own deliberate silences, and the Court cannot fill them as if they were drafting gaps.

Two proceedings unfolding at the highest constitutional forum have revealed a deep and persistent fault line in the exercise of public power. One concerns the President’s reference seeking clarity on whether courts may bind Governors and the President to specific timelines when acting on state Bills. The other concerns the unresolved defection petitions before the Telangana Speaker, which have lingered so long that the Supreme Court has begun to contemplate contempt. Although these controversies arise from different parts of the constitutional text and engage different institutions, they point to the same crisis. They demonstrate how silence, or the refusal to act, has become a potent constitutional force—capable of altering legislative outcomes, reconfiguring political majorities, and destabilising the structure of responsible government.

The Court’s advisory opinion makes clear that it cannot judicially manufacture deadlines, for this would alter the constitutional design and intrude upon executive power. The Constitution contains its own deliberate silences, and the Court cannot fill them as if they were drafting gaps. Yet the judges were equally clear that these silences cannot be exploited for partisan or strategic advantage. A Constitution that tolerates brief pauses for deliberation cannot be read as endorsing indefinite delay. This tension is also evident in the Telangana crisis, where a refusal to decide has allowed shifts in allegiances to influence the functioning of the House. The Speaker’s inaction has not been abstract. It has shaped voting patterns, legislative outcomes and political alignments. In this sense, the Speaker’s silence operates with the same constitutional effect as an improperly exercised power.

The Telangana Impasse

The events in Telangana reveal how institutional responsibility collapses when constitutional duty is ignored. After the Assembly elections, petitions were filed alleging that ten MLAs had defected to the ruling Congress party. For months, the Speaker took no steps to adjudicate these complaints, even as the MLAs participated in crucial votes on the floor of the House. The constitutional mandate under the Tenth Schedule was effectively suspended, and the electorate’s verdict reshaped without any formal determination.

The matter reached the High Court, where a single judge directed the Speaker to decide the petitions within a reasonable period. The Division Bench stayed this direction, defending legislative autonomy and cautioning against judicial interference. However, the stay revived the very vacuum the single judge sought to address, leading the controversy to escalate to the Supreme Court.

On 31 July, hearing an appeal against the Division Bench order, the Supreme Court instructed the Speaker to take a final decision within three months on the disqualification of the ten MLAs. The direction reflected a clear judicial position that defection disputes cannot be allowed to linger. Yet even after the expiry of that period, no progress occurred. The Speaker remained unresponsive, and the political consequences of this silence continued to accumulate.

At this stage, the Chief Justice of India issued notices in all pending matters, returnable in two weeks, and directed the Speaker to conclude the disqualification process within that time or face contempt. The Court reaffirmed that the Speaker does not enjoy constitutional immunity when performing adjudicatory functions under the Tenth Schedule. The CJI also signalled possible consequences for continued inaction, remarking that the Speaker would have to decide “where he has to celebrate his New Year’s Eve.” The comment was pointed, reflecting the judiciary’s growing frustration with an officeholder who had declined to discharge a constitutional duty.

The Gubernatorial Question

The second controversy concerns gubernatorial delay. The framers retained the phrase “as soon as possible” in Article 200 because they believed constitutional morality, rather than judicially enforced timelines, would guide the office of the Governor. For many decades, this assumption held. But in recent years, several states have faced extended delays in securing gubernatorial assent. Some Bills remained pending for more than two years, often coinciding with political disagreements between the state and the Union.

Legislative programmes were halted, administrative schemes stalled and elected governments found their mandates obstructed—not through open constitutional reasoning but through the silent withholding of assent. Silence became a mode of political resistance disguised as constitutional discretion. When the Supreme Court attempted to impose timelines in a recent case from Tamil Nadu, the presidential reference asked whether such timelines were permissible. The Constitution Bench ultimately held that courts cannot prescribe fixed limits where the Constitution has chosen not to. Yet it also held that prolonged non-action is inconsistent with responsible government and revived the doctrine of limited mandamus to enforce constitutional accountability.

Limited Mandamus and Constitutional Responsibility

Limited mandamus permits courts to direct an authority to act without dictating the substance of that action. It enforces constitutional duty while preserving institutional autonomy. Applied to Governors, the Court may require a decision on pending Bills but cannot prescribe what that decision must be. Applied to the Speaker, the Court may insist that defection petitions be adjudicated but cannot predetermine their outcome. Without such a doctrine, strategic silence would hollow out both Article 200 and the Tenth Schedule.

When Constitutional Morality Fails

The Governor and the Speaker were expected to operate with constitutional morality. This expectation was the reason the framers left timelines open. They believed that self-restraint and constitutional responsibility would guide these offices. They trusted the spirit of the Constitution to fill the spaces the text left unwritten. Recent events show how fragile that trust becomes when political incentives pull in a different direction.

Silence is difficult to challenge because it hides behind the language of discretion. It is difficult to prevent because it arises in the very spaces the Constitution leaves open. It is difficult to remedy because judicial review traditionally operates on decisions, not on persistent refusals to decide. This is precisely the challenge that thinkers from Aristotle to Ambedkar warned about: a constitutional design that rests on virtue cannot survive if virtue is replaced by expediency.

The Supreme Court has acted within the limits of interpretation. It has identified the problem, revived doctrinal tools and sent strong signals that institutional silence cannot paralyse democratic processes. But it cannot go further without effectively rewriting the Constitution.

Parliament Must Act

The responsibility now lies with Parliament. It must consider creating clear and reasonable timelines for gubernatorial action under Article 200 and for Speakers to decide defection petitions under the Tenth Schedule. These timelines would not undermine the autonomy of these offices; they would simply ensure that silence cannot be weaponised to reshape political outcomes.

Statutory timelines would provide clarity, protect the link between electoral mandates and legislative functioning, and ensure that the anti-defection mechanism is not compromised through delay. They would reduce the need for judicial intervention and reaffirm the principle that constitutional power must be exercised within a reasonable period.

Inaction cannot become a method of governance. Silence cannot be allowed to influence mandates or stall legislatures. If constitutional design is to remain meaningful, it must be supported by a political culture that values responsibility. Since that culture has weakened, the law must step in. The two controversies before us are reminders of how quickly constitutional arrangements erode when institutions fail to act when duty demands it. The path ahead is clear: silence can no longer remain unregulated. It is time to legislate.

(Shubham Kumar is an academic lawyer and a public policy professional focusing on democratic institutions and access to justice.)

Views are personal, and do not represent the stand of this publication.