COURT’S RULING CLOUDS FEDERAL BALANCE FURTHER

The Court's advice that the Governor or President's subjective satisfaction is immune from judicial review has no constitutional precedent in the context of legislation that reflects the people's will

- KAPIL SIBAL

THE response of the Supreme Court to the Presidential Reference has raised more questions than it has answered. It is constitutionally flawed and politically troublesome.

Let us first examine what the Constitution Bench has done right. It has held that neither the Governor nor the President can withhold a Bill passed by the State Legislature interminably. That is a no-brainer. The Supreme Court could not have held otherwise. Secondly, it is held that, in the event the Governor or the President, as the case may be, sits over a Bill for an unduly prolonged period, limited judicial review is available, that too only on the question of delay.

The advice rendered has both constitutionally and politically problematic consequences. The constitutional consequences are as follows:

(i) The advice negatively impacts the federal structure of the country; (ii) The subjective satisfaction of the Governor, at the initial stage and later of the President, is immune from judicial challenge; and

(iii) The plenary powers of the State Legislatures can be thwarted by executive fiat, through the Governor or the President, by unduly delaying implementation of the will of the people.