No closure in the state versus governor battle

The presidential reference to the Supreme Court following the latter's judgment that set deadlines for gubernatorial and presidential action on Bills was not an expression of innocent constitutional curiosity.

- Kaleeswaram Raj

In State of Tamil Nadu v. Governor of Tamil Nadu, a two-judge Bench of the Court, in its adjudicative jurisdiction, essentially did two things: (i) It fixed a time limit for Raj Bhavans and the President in general for acting upon the Bills passed by the state legislatures; and; (ii) it evolved an idea of deemed assent, and invoked it when there was unreasonable and inordinate delay on the part of the governor of Tamil Nadu in acting upon Bills passed by the assembly that had been sent to him.

Now, the presidential reference under Article 143 of the Constitution has led to an opinion by a five-judge Constitution Bench, which, in its advisory jurisdiction, overturned both the principles outlined in the two-judge Bench’s judgment. Though the impact of the Tamil Nadu judgment will remain intact on the laws so promulgated, its precedential value will be substantially damaged on account of the opinion given by the larger Bench. Henceforth, a state legislature faced with an inexcusable gubernatorial or presidential delay on a Bill may not be able to seek a deemed assent with an element of certainty, based on the Tamil Nadu judgment.

With the Court having viewed deliberate inaction on the part of governors as a serious constitutional obstacle in our democracy, it ‘was incumbent upon the Constitution Bench to prescribe concrete solutions. Even its indulgence for “limited judicial review” and “limited mandamus” may not yield any result in the absence of a concept of deemed assent, at least in extreme cases where the gubernatorial or presidential laches are ostensible and unjustifiable.