Constitutional Provisions Require Progressive Interpretations
M A Baby
THE recent advisory opinion of the Supreme Court on the Presidential Reference concerning the powers of the Governor and the President marks a deeply troubling moment for Indian democracy and federalism. Instead of reinforcing the supremacy of the elected legislatures and curbing an increasingly partisan gubernatorial regime, the Court’s answer retreats into abstraction and further strengthens the very practices that prompted the crisis.
In state after state, Governors appointed by the union government have sat for months, even years, on bills duly passed by the state legislatures, effectively converting a constitutional office into a veto point against the popular will. Bills passed by the legislature and sent to Raj Bhavan have been treated as if they were dispatched to a black hole, with no indication of assent, return, or reservation, in direct violation of the spirit of Article 200’s requirement that action be taken ‘as soon as possible’.
This is not an administrative accident but a political pattern. The brazen obstructionism by Governors is almost exclusively directed against governments that are not part of the ruling alliance at the Centre, while state governments run by the BJP or its allies do not face comparable stonewalling on their legislative agenda. The office of the Governor has thus been weaponised as an instrument of partisan control, undermining the federal balance envisaged in the Constitution and eroding the basic principle that elected legislatures express the sovereign will of the people.
It was this extraordinary situation of constitutional sabotage that led state governments to approach the Supreme Court, seeking a remedy against the deliberate stalling of bills. The two-judge bench judgment of April 8 responded to an extraordinary crisis with an appropriately bold intervention, recognising that indefinite delays by Governors were ‘illegal’ and contrary to the constitutional scheme, and insisting that constitutional authorities act within a definite time frame when presented with bills. That judgment indicated a readiness to defend representative democracy against executive obstruction.
By clarifying that the Governor had only three options under Article 200 – assent, withhold and return, or reserve for the President – and that bills re-enacted by the legislature must receive assent, the Court briefly appeared to restore sanity to the law‑making process in the states. It gave hope that the judiciary would not allow the Constitution’s silences to be converted into weapons against state autonomy and popular sovereignty.
During the Constituent Assembly debates concerns were raised about the potential misuse of the Governor’s office and doubts expressed about the neutrality of unelected heads of state in a democratic polity. On May 31, 1949, Ambedkar said, “The Drafting Committee felt, as everybody in this House knows, that the Governor is not to have any kind of functions – to use a familiar phraseology, "no functions which he is required to discharge either in his discretion or in his individual judgment". According to the principles of the new Constitution he is required to follow the advice of his Ministry in all matters.” He further went on to categorically state “as I said, this functionary is going to be a purely ornamental functionary”. Participants in the debates emphasised that governors should be figures of high standing, detached from local politics, whose wisdom and experience would be a guiding force rather than a point of conflict. In short, they were to have impeccable integrity.
However, the anxieties expressed in the Constituent Assembly are today being fully vindicated. Governors are increasingly functioning as political agents of the ruling party at the Centre, intervening in day-to-day governance, blocking or delaying bills, and issuing public statements that place them squarely in the partisan arena. There is no democratic element in their selection or appointment. They owe their office entirely to the central executive, and their conduct reflects this dependence. The constitutionally envisaged impartial head of the state stands exposed as a convenient cover for centralised political control.
The contrast with the office of the President is instructive. Unlike Governors, the President is indirectly elected, with electors from both Parliament and state legislatures, making the office at least formally accountable to a broader democratic constituency. Even Presidents who owe their election to the ruling coalition have historically refrained from openly embarrassing the union government by indefinitely withholding assent to parliamentary legislation or turning the president’s office into a site of routine confrontation.
Yet the Constitution Bench has now chosen to treat both offices as if they enjoyed similar immunities and, as if any serious judicial oversight over their legislative functions would necessarily violate separation of powers. In effect, a nominated and politically dependent Governor is placed beyond effective judicial scrutiny at precisely the moment when the office is being used to subvert the democratic process in the states.
Faced with this concrete pattern of abuse, the Constitution Bench chose to embark on a high-minded philosophical exploration of separation of powers, institutional comity, and judicial restraint. It concluded that the exercise of powers by the Governor and the President under Articles 200 and 201 is not justiciable. The Court rejected its own earlier effort to stipulate a clear time frame as ‘judicial overreach’ and washed its hands of the responsibility to prevent constitutional paralysis.
The Bench has suggested that courts can only issue a ‘limited direction’ to constitutional authorities to act within a ‘reasonable’ time, without defining what counts as reasonable or insisting on meaningful consequences for unreasonable delay. Without a concrete time limit or enforceable standard, ‘reasonableness’ becomes a hollow phrase. This allows Governors to continue sitting on bills, confident that the judiciary will not step in with effective remedies as long as they maintain a facade of formal discretion.
This timidity stands in stark contrast to historic interventions such as the S R Bommai judgment, where the Supreme Court categorically held that the majority of a government must be tested on the floor of the House, not decided by the Governor’s subjective satisfaction. That decision marked a firm judicial stand against the political misuse of Article 356 and helped curb a particularly grotesque form of central high-handedness.
Today, when Governors are once again at the centre of federal tensions – this time through legislative obstruction rather than the dismissal of governments – the Court has chosen not to follow the Bommai path of robust defence of constitutional federalism. Instead of insisting that the will of the elected legislature must prevail unless clearly unconstitutional, the advisory opinion turns the Governor’s silence into an unreviewable constitutional practice, thereby encouraging further mischief.
Over the last eleven and a half years of the Modi government, India’s federal structure has been subjected to relentless strain. Union-state relations have been marked by systematic attempts to centralise power, weaken fiscal autonomy, and undermine political opponents through both institutional capture and financial coercion. From the design of Centrally Sponsored Schemes to the arbitrary release or withholding of funds, the Centre has consistently used its fiscal dominance to force compliance with its political and economic agenda. Even funds meant to mitigate natural calamities have been withheld to state governments, out of sheer political vendetta.
In this environment, Governors have been deployed as an additional lever of control over non-BJP ruled states. Legislative initiatives that embody alternative policy choices – whether in welfare, education, health, or social justice – are stalled or questioned not on constitutional grounds but because they deviate from the ruling party’s ideological line. The message is clear; the federal compact will be honoured only if state governments fall in line with the Centre’s diktats.
Under these conditions of coercive federalism and aggressive centralisation, the Supreme Court’s duty is not to hide behind a narrow reading of separation of powers but to interpret the Constitution in a manner that strengthens democratic choice and protects state autonomy. Constitutional provisions are not dead letters; they must be read dynamically, in tune with the needs of the times and with an unambiguous bias towards the people’s sovereignty as expressed through elected governments.
A genuinely progressive interpretation of Articles 200 and 201 would have recognised that constitutional silences cannot be used to defeat representative democracy. It would have affirmed that Governors and the President must act within a definite, enforceable time frame and that failure to do so amounts to a constitutional wrong for which courts can formulate effective remedies. Far from usurping executive powers, such an approach would have upheld the core democratic principle that unelected authorities cannot override the will of the people.
By refusing to fix timelines and by declaring the Governor’s actions in this sphere effectively beyond judicial review, the Supreme Court’s advisory opinion has failed to rise to the challenge posed by the present political conjuncture. It has sacrificed substantive democracy at the altar of a formalist doctrine of separation of powers, and in doing so, it has emboldened those who are already bending constitutional institutions to partisan ends.
The task now falls on the democratic movement, progressive political forces, independent media and the people at large to demand that constitutional offices, including that of the Governor, be brought within the framework of accountability to the popular will. The Constitution belongs to the people, not to unelected or partisan functionaries. Reclaiming its spirit requires both political struggle and a renewed insistence that every organ of the state, including the higher judiciary, align its interpretation and practice with the principles of democracy, federalism, secularism and social justice.
