FPJ Analysis: Supreme Court Ruling Curbs Presidential Delays On State Bills, Reinforces Federalism

Following up on its April 8 order setting limits on gubernatorial discretion in withholding assent to bills passed by state legislatures, the Supreme Court (SC) curbed the power of the President to indefinitely delay the enactment of state legislation in a judgement that is bound to have serious repercussions on the Indian polity, especially in helping restore the balance between the centre and the states in India’s federal structure. It is a most consequential and welcome strike in favour of states’ rights that have been casually infringed upon by an authoritarian centre that has little respect for democratic norms and federal principles. The SC ruled that neither the governor nor the President has ‘unbridled powers’ to exercise an ‘absolute veto’ on any bill passed by state legislatures. It fixed a three-month time limit on the right of the President to sit on a bill following the one-month deadline for governors, if assent is to be granted. Procedures and timelines have been fixed for acting on bills returned to the governor by the legislatures in cases where they have been referred to them for reconsideration. The top court also said that reasoned orders have to be passed, seeking to clamp down on the arbitrary exercise of power by constitutional authorities. The doctrine relates to the fundamentals of constitutional and representative democracy in which legislatures embody the will of the people, who are sovereign.

The SC order rightly argues that withholding assent to legislation passed by legislatures infringes their powers. This cannot be allowed since the ‘will of the people’ has to be respected along with the powers of elected governments responsible to the people. This is a fundamental issue of popular sovereignty on which the political system is constructed through the Constitution. While the issues of popular will and sovereignty are moot, so is that of federalism, which has been subject to an alarming assault over the past decade. The institutionalisation of a strong centre and relatively weak states at the outset has helped this assault. The misuse of gubernatorial power, coupled with the gross and corrupt manipulation of financial powers by the Bharatiya Janata Party (BJP) regime at the centre, has made a mockery of the good-faith expectations of the framers of the Constitution. Kerala governor RV Arlekar has weighed in with some jejune comments on the SC order, implying that the judiciary has attempted to encroach on the powers of the legislative branch. His comments show that the perspective of the BJP is focused on disrupting constitutional democracy by undermining and subverting all possible institutions, including the judiciary itself. Arlekar and the BJP need to be schooled in the principles of constitutional morality. The two SC orders will contribute substantially to that objective.