The Authors, Vaibhav Singh Tiwari, and Harshit Pathak, are 3rd Year and 5th Year students, respectively, at Dharmashastra National Law University, Jabalpur.
Featured Image: The Supreme Court Observer
Recently, the Supreme Court of India (“SC”) in The State of Tamil Nadu v. Governor of Tamil Nadu (“TN Governor case”) invoked its discretionary power under Article 142 and declared that the TN governor’s delay was “erroneous”. The TN governors’ prolonged inaction on a set of legislation raises a constitutional conundrum that, when democratic institutions deliberately attempt to avoid institutional responsibilities, who fills the void? The SC’s invocation of Article 142 to approve pending bills has raised critical concerns over breach of the separation of power and judicial overreach in the executive functions. While the judicial creativity under Article 142 cannot be undermined, this case has highlighted a systematic concern as it risks institutionalizing the “judicial substitution” for “executive inaction”.
On paper, the decision seems to be a positive judicial step to uphold the spirit of cooperative federalism and reaffirm the governors as constitutional heads of the state, not merely a central agent. However, we believe the decision crosses into the executive domain and disrupts the functional boundaries of “separation of powers”. We also argue that this not only undermines the discretionary power given to the governor under Article 200, but also risks undermining the legacy of “political constitutionalism”.
In this light, the authors in Part I of the article analyse the scope of Article 142 and how it balances between judicial intervention and constitutional transgression, in Part II the decision is analysed through the lens of the separation of powers, in Part III the authors examine contours of the judicial intervention in politically sensitive matters, and finally conclude in Part IV of the article.
- Unpacking Article 142: Between Judicial Innovation and Constitutional Transgression
The recent invocation of Article 142 in the TN Governor Case to grant assent to the pending bills has again stirred controversy on the nature and scope of Article 142 of the Constitution. Article 142 provides extraordinary power to the Apex Court to pass such enforceable decree or order as necessary for doing ‘complete justice’ in any cause or matter pending before it. The frequent invocation of Article 142 by the SC has raised concerns regarding its potential to violate the principles of substantive due process of law.
The SC has constantly discussed the scope of Article 142 and has held that the power to do complete justice must not violate the substantive laws. The SC in the case of Prem Chand Garg v. Excise Commissioner, U.P. has held that the power under Article 142 is very wide and the same can be invoked to do complete justice but the same cannot be inconsistent with the express provisions of substantive law, much less, constitutional provisions. Similarly, In Re, Vinay Chandra Mishra, the SC held that the powers conferred to the court are curative in nature and cannot be construed as powers which authorise the court to ignore the substantive due process of law. It cannot be used to build a new edifice where none existed earlier, and thereby to achieve something indirectly which cannot be achieved directly. Thus, while invoking Article 142, the SC should be cautious and must ensure that the same is not invoked to achieve something which is against the cardinal principles of law.
The SC in the present case has transgressed the boundary of Article 142 of the Constitution by granting assent to the pending bills. The SC has justified the invocation merely on the grounds of prolonged delay due to inaction, improper withholding without a clear message and unjustified reserving of bills to the president. These reasons are not sufficient to invoke the power under Article 142 as it not only breaches the constitutional tenets but also infringes the cardinal principle of law i.e. Separation of power. In the recent case of Shilpa Sailesh v. Varun Sreenivasan, the SC discussed the limitation on the exercise of power under Article 142 wherein it held that the power should not oppose any substantive law based on fundamental principles of general and specific public policy and basic features of the constitution. Thus, the exercise of power by taking over legislative functions of the governor provided under Article 200 is a clear violation of substantive law and the separation of power doctrine, which is a basic feature of the constitution.
- Separation of Powers and Constitutionalism
The decision of the SC granting assent to the pending bills by invoking Article 142 and fixing the timelines for communicating decisions on bills by the governor and president has been criticised as a violation of the separation of powers doctrine due to the intrusion of the judiciary into the domain of the executive. The separation of powers has been held as the basic structure of the constitution in the State of Tamil Nadu v. State of Kerala, wherein the SC noted that the separation of powers is the consequence of a principle of equality enshrined in Article 14 of the Indian Constitution and thus, the negation of the separation of powers will amount to violation of equality under Article 14. Furthermore, separation of powers has also been considered as a basic feature of the constitution and cannot be violated in the light of the landmark judgment of the SC in Advocates-on-Record Assn. v. Union of India.
The continuous intrusion in the legislative and executive domains under the grasp of the judicial review has raised concerns of judicial overreach and calls for judicial restraint in policy matters. The idea of judicial restraint requires the judiciary not to take over the functions of other branches, in order to prevent a breach of its constitutional functions.
The SC in the present case has not only undertaken the functions of the legislature, i.e. grant of assent to the bills, but also interfered with the constitutional functions of the governor and president. Many jurists have argued that the judgment is a much need respite and an act of judicial activism, but the court has time and again clarified that in the name of judicial activism judges cannot cross their limits and try to take over functions of other organs of state,.
The present case again brings the question of the determination of the fine line between judicial activism and judicial overreach to prevent the tendency of the SC to venture into the political realm, notwithstanding the implicit limits imposed through the doctrine of separation of powers and political thicket. The constant dereliction from the well-established doctrine by the court creates an imbalance in the power dynamics between the branches of the state, as recently witnessed, when the vice-president termed the parliament as supreme and criticized the SC for its decision. This can also result in a paradigm wherein judicial overreach will become a constitutional norm; and thus, there is an urgent need for judicial restraint in policy matters.
- Navigating the Political Thicket: Redefining Judicial Review in the Constitutional Order
The TN Governor case has sparked a debate on the use of Article 142 by the SC, and in the words of Vice-President Jagdeep Dhankar, it is “a nuclear missile against democratic forces available to the judiciary 24×7”. The decision has marked a watershed moment in the jurisprudential use of Article 142, invoking “deemed assent” to the pending bills as a remedy against “executive inaction”. As analysed in the previous section, not only does it violate the principle of “separation of powers” but it also undermines the justiciability in a structured constitutional democracy. The decision by the apex court fundamentally dislocated the structural design of the discretionary power of the governor under Article 200, creating a normative and procedural vacuum on how the governor will address the questions of constitutionality of any legislation.
The intermediate constitutional actors, e.g., the president, governors, are crucial “sites for institutional contestations in quasi-federal democracies. These actors exercise the crucial power of “immediate judicial review” by exercising their inherent discretionary power. By setting the judicially enforceable timelines for giving assent, the court has made these actors passive transmitters of legislative will. This interpretation undermines the structure of checks and balances embedded within our constitutional framework, particularly within the discretionary power exercised by the governor and president to reserve the bill.
The “political thicket” doctrine provides the foundational restraint on judicial overreach in the political domains. As observed in Baker v. Carrin, in the United States, the judiciary is restrained from adjudicating matters involving political questions. The act of withholding assent and restraining the bills by the governor and president is one such constitutional function that involves political considerations. By prescribing a time limit and invoking “deemed assent”, the SC has overstepped this constitutional discretion, thereby entering into the question of “political thicket”.
The interpretative overreach has also generated a normative conundrum – if the governor delays the assent to any bill, upon suspecting the constitutionality of legislation, would that be unconstitutional? If a delay in assenting to the bill is unconstitutional, then the governor has to be forced to assent to the potentially unconstitutional legislation merely to fulfil the procedural requirements. It diminishes the constitutional discretion of the governor, reducing it to a ceremonial execution of legislative will. This transformation will have structural consequences for Inter-institutional checks and Federalism.
- Conclusion
The SC’s invocation of Article 142 has again exemplified the thin line between the judicial activism and overreach. The judgment has also transformed the position of the governor from “intermediate constitutional actor” to “mechanistic facilitator of legislative will”. In doing so, the judiciary has transgressed the boundaries of interpretative adjudication and intruded into the terrain of legislative prescription, thereby breaching the principle of separation of power. Moreover, by intruding into the space, which was traditionally reserved for political deliberations, the court has destabilized the contours of the political thicket. Thus, the decision compromises the role of specific responsibilities that lie at the heart of constitutionalism. Such transformation risks the erosion of deliberative space necessary for intergovernmental dialogue. As judiciary continues to navigate such complex constitutional terrain, it must balance its interventions by preserving the foundational ethos of constitution.
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