Article 142: A Governor’s Alarm

This is not an elaboration of the judgement but a step beyond, I hope you enjoy reading.

After having gone through the entire judgement, I must confess that the judgement left me with mixed feelings which I would wish to elaborate by way of this blog. The mixed feelings equally contain a deep sadness in the beginning, a sigh of relief in middle and a little caution by the end. So now you know the genre of my writing. To begin with, I must first bring it to your notice that not only the judgement but the facts, which led to filling of the Writ Petition calling for interpretation of Article 200, are itself quite worrisome.
There is a thin distinction between a Constitutional Monarchy and a Constitutional Democracy. While wisdom loses its hope to those who endeavour power in a Constitutional Monarchy; it is men with power who accord their powers with wisdom and morality in a Constitutional Democracy. However, the present state of affairs is unfortunately parting ways with the later principle discussed above. What provides the foundation for establishing the rule of Constitutional Democracy? A simple answer is Constitutional Machineries. It is these institutions who are regarded as the protectors of the rule of law by following the first principles of our Constitution. Sadly, we are witnessing contrary. Coming back to the current state of affairs in our country, it is very sad to see the manner in which Article 200 was used and especially in the State of Tamil Nadu. If any person ever happened to visit Article 200 prior to the present judgement and read the provision and the provisos contained therein, I may be correct to say that one may not even require to process for what is put forth in the provision. So straight is the law, yet we witnessed turmoil in the state of Tamil Nadu. It may be true that the existence of our Constitution may not be in danger, but the stream seems to carry an infection and the facts suggest that the blood in veins, of those who disburse their duties under our Constitution, is suspected to have been infected.
As a matter of fact, a petition was filed because the Governor withheld the assent of 12 bills for almost 3 years which were passed by the State Legislature of the state of Tamil Nadu. Issuance of notice in the petition alarmed the sleeping governor. Similarly, 10 out of 12 bills were sent back simpliciter to the State Legislature for reconsideration. After the bills were repassed by the State Legislature, they were presented to the governor for assent. The second proviso mandates the governor to grant assent after a bill is repassed by the State Legislature. In contrary, the Governor, without the aid and advice of the council of ministers, in exercise of his discretion, reserved the said repassed bills for the consideration of the President which is a clear violation of the second proviso of Article 200. This is the state of our Constitutional Democracy. A governor who holds a high Constitutional Office in a state has acted in compromise to a straight written mandate envisaged under Article 200. It is sad to see such destructive and overriding of the Constitutional Mandates by those who derive their office under it. As a matter of my concluding remarks on the first quarter of my blog I must say that 75 years of our Constitutional maturity was blown away when the Hon’ble Supreme Court had to intervene to wake a sleeping governor.
Coming to the mid part of my article, which I am eager to share with you. is the short term relief that came with the judgement. It was a remarkable moment for the Hon’ble Supreme Court to come heavy on the Governor and to protect the rule of law. It is for the credit of those 2 judges who demonstrated the true meaning of judicial activism. The judgement has set a time limit on the governor to withhold assent, it has elaborated the first proviso and the actions available with the governor under it and it has also given birth to the scope of judicial review in regards to certain aspects of Article 200 and 201. I may have certain reservations on some part of the judicial review which is elaborated in the judgement but nonetheless it has otherwise helped to resolve a big problem for the State of Tamil Nadu. I am of the opinion that a situation like this where a Court has to intervene ought not have occurred but nonetheless in my opinion there was no option left !
Coming to the last part of my Blog, I wish to highlight an area which has left a little amount of circumspection in my heart tough the judgement has elaborately dealt with many facets of Article 200 , there is a space left in the room which is still dark and which may invite problems in future that is the “Aspect of simpliciter sending the bill for reconsideration to the State Legislature”. Taking into account the facts of the present case , it would become very easy for a governor to send the bills back for reconsideration without specifying the reasons or the grounds on which he has sent them back. This is the area where I foresee upcoming turbulence in mere future .It may become common to see an executive head of a state asking the state legislature to reconsider a passed piece of legislation without specifying the grounds for such reconsideration. This may give rise to tumult. In my opinion asking for reconsideration under the second proviso of A.200 has to be specific and not blunt. Let us for a moment think what if we continue accepting blunt proposals of reconsideration? In a scenario similar to that, we will witness toppling and compromising of purity of the legislative functions of the state and the decisions of the majority in the hands of a head of executive of the state. This is not what A.200 encourages for. This shall not be permitted in any circumstances. Thus, this aspect has to be thought upon.
Therefore, coming to the end of my blog I would like to suggest a solution to this contemplated problem. In my opinion, to put a mandate upon the governor to sight reasons and grounds while pleading for reconsideration might be effective. I might have suggested to couple the words “reasons” and “grounds” with the expression “valid” or “reasonable” but I am in suspicion that it might invite new difficulties in implementation. Thus, a governor shall, present before the state legislature, reasons and grounds based upon which he wishes the state legislature to reconsider a bill and it may not be necessary for the legislature to consider anything other than those grounds, unless it wishes otherwise. The question which arises now is regarding the scope of Judicial Review to such reconsiderations , I have a negative opinion in terms of the judicial review in that aspect but nonetheless I am certain that this would not only save the time of the state legislature but will ensure that the executive does not come with a chain in an attempt to chock the legislative dignity.
At the end of this article I may very responsibly observe that tough we may not require to declare a state of emergency today but a prudent man cannot deny the feeling which our citizens are having in their hearts which may resemble nothing less. We shall endeavour to avoid ignorance of the alarming state of the rule of law in our country today. It is pivotal that the Constitutional offices start functioning in harmony to the directives as provided by our Constitution and not by some associations otherwise. It is easy for a powerful king to go mad, it is very difficult for men entrusted with power to withstand a wise character.

Thanku for reading.