On April 8, 2025, the Supreme Court decided a long-simmering dispute between the Governor of the State of Tamil Nadu, and the State’s government and Legislative Assembly. For a period spanning years, the Governor had refused to act upon the Bills that had been passed by the State’s Legislative Assembly — neither assenting to them, nor returning them to the Assembly nor referring them to the President. Effectively, the Governor had been exercising a “pocket veto” over the Bills.
Upon the Supreme Court’s nudging, the Governor eventually returned the Bills to the Legislative Assembly for reconsideration; when, upon reconsideration, the Legislative Assembly sent the Bills back to the Governor’s office for a second time, the Governor then referred them to the President. At the time of the court’s judgment, the President had assented to one of the ten Bills before her, withheld assent to seven, and had yet to act on two.
Tamil Nadu is not the only State where such events have taken place: clashes between the centrally-appointed Governor and the Legislative Assemblies of States have been increasingly commonplace in recent years, in States where an Opposition party, or a combination of Opposition parties, are in power. The dispute before the Supreme Court, thus, was important not only for its own sake; more than that, it was representative of a broader set of tensions within India’s federal structure.
Going above and beyond
In a lengthy judgment, spanning 415 pages, the Supreme Court found that there was no justification for the Governor’s actions. Under the Constitution, Governors were entitled neither to exercise a veto nor a pocket veto over the State Legislative Assembly’s Bills. Nor could Governors first return a Bill to the State Legislature, and then refer it to the President; it had to be one or the other (and the second, only under certain specific conditions).
The President, as well, when considering State Bills, could not withhold their assent unless there was a constitutionally-sanctioned reason for doing so (such as, for example, inconsistency between the State Bill and an existing central law). Indeed, this was the only position that adequately respected the will of the people of the States, as articulated through their elected representatives in the State’s Legislative Assembly, and the only position that adequately respected India’s federal structure.
The Supreme Court, however, did not stop at simply laying down the law. In a move that has raised eyebrows and generated some amount of controversy, it went further: first, it laid down specific and categorical timelines within which the Governor and the President were required to consider, and take action, on State Bills (these timelines depended on the nature of the action – assent, referral, or return). It is important to note that the Constitution itself prescribed no such timelines.
And secondly, in this specific case, having found that the Governor had acted without bona fides, and that years had passed since the Bills were first sent to his office, the Supreme Court invoked its power to do “complete justice” under Article 142 of the Constitution, and held that these Bills were deemed to have been passed, and were now law. Indeed, a day after the court’s judgment, the government of Tamil Nadu promptly notified the Acts, and brought them into force.
Critics argue that in prescribing timelines where none existed in the Constitution, and by taking it upon itself to “enact” the pending Bills, the court overstepped its remit, and engaged in functions that, constitutionally, are within the remit of other branches of government. Defenders of the court, on the other hand, point to the fact that the Governor’s years-long, unjustified delay had backed the court into a corner, where there was no other realistic option before it. What, then, are we to make of what the court did?
To answer this question, it is important to move beyond the specific actions of the specific actors in this drama, and consider the constitutional design itself.
Problem of constitutional design
The Indian Constitution contains a set of tensions that are the product of the historical moment in which it was written. On the one hand, the framers of the Constitution were committed to creating a federal and parliamentary structure of governance for the new nation-state that was coming into being.
On the other hand, however, prominent members of the Constituent Assembly — Jawaharlal Nehru, B.R. Ambedkar, and Vallabbhai Patel, among others — were, at heart, centralists. For a number of distinct reasons — which did not always overlap — they wanted to ensure that even as the Constitution devolved power both horizontally (that is, away from the executive and to representative bodies) and vertically (away from the Centre, and to the States), ultimate control would be exercised by a strong, unitary executive.
To achieve this, the framers turned to what they knew best: colonial constitutional instruments, whose core governing principle had always been the principle of executive supremacy. From the beginning of the 20th century, under serious pressure from the Indian national movement, the British had grudgingly, and incrementally, allowed for the existence of representative institutions and proto-legislatures. At all times, however, they made sure to ensure that the ultimate control lay with the British-appointed executive, who could override representative institutions in the larger interests of maintaining the British Empire.
One crucial part of this arsenal was the colonial governors, who were appointed to keep nationalist aspirations within the provinces, as expressed through provincial legislatures, in check.
The framers did not, of course, borrow the colonial institution of the Governor wholesale; what they did was to carry over the form into the new Constitution. However, the moment the Constitution created two poles of authority — the Centrally-appointed Governor, and the elected State Legislature — at the federal level, tensions and conflicts were bound to arise.
One way of resolving these tensions would have been to adopt a strategy that we see elsewhere in the Constitution: extensive codification and detailed rules setting out how power would be exercised, and how it would be limited. However, when it came to the structures of government — the legislature, the executive, and the Governor — the framers did not codify; instead, they left the issue to be decided through unwritten constitutional conventions.
This choice was not neutral: the refusal to expressly limit the exercise of power meant that the Constitution contained silences where it mattered the most — silences that could, and were, exploited by actors who had no respect for constitutional conventions.
The problem before the Supreme Court, thus, was a problem of constitutional design. By design, the Constitution placed no express check on Governors engaging in pocket-vetoes. At the same time, without such a check, the system was entirely reliant on good faith: the moment a Governor chose to exploit constitutional silences, the entire federal structure could – and would – be undermined.
Time for course correction
The Supreme Court’s decision, therefore, is best understood as a judicial attempt to correct defective constitutional design. The choices made at the time of the framing were playing out in a way that would reduce the principles of federalism and representative democracy to a farce — unless there was external intervention. In our system, the only body capable of such intervention is the court.
Of course, the court’s judgment is not free of problems. In doing what it did, the court granted itself further and greater powers: to enforce timelines (as well as decide exceptions to those timelines), and judge intra-State organ conflicts. This should tell us that, ultimately, such intervention is not sustainable in the long-term, as piecemeal attempts to correct defective constitutional design will lead to lop-sided results elsewhere.
What is needed, then, is an urgent conversation about the Constitution’s centralising drift, and whether the centralising choices made in 1949 still hold today. A starting point for this could be questioning why it is, in 2025, that we need the office of the Governor in the first place.
In the meantime, however, the court’s judgment, thus, is not gratuitous overreach; it is best understood as a temporary salve — a band-aid — on a wound that needs deepeer, and more longer-term treatment.
Published – April 20, 2025 10:45 pm IST
