Justice katju
In State of Tamilnadu vs Governor of Tamilnadu, the Indian Supreme Court has given a series of directives, which have been widely applauded by lawyers, the media, etc However I have grave reservations about it, and I doubt it will be followed by the Government
https://api.sci.gov.in/supremecourt/2023/45314/45314_2023_11_1501_60770_Judgement_08-Apr-2025.pdf
In that case the petitioner, State of Tamilnadu, had complained that the Governor of the state had for many years withheld assent to several bills passed by the state legislature, and thus they could not become law.
In para 434 of its judgment, a 2 judge bench of the Supreme Court gave several directives by assuming an activist role, e.g.
1.The Governor’s assent will be deemed to have been given on the date the Bills in question are presented to the Governor after reconsideration by the State Legislature.
2. Reasons must be given by the President for withholding assent ( vide para 397 )
3. To withhold assent under Article 201, the President must seek clarifications from the State Govt ( vide para 401 )
4. When the Governor receives a Bill passed by the State Legislature, he must give his assent, or declare within a month that he is withholding assent or referring it to the President
5. If the Governor decides to withhold assent, he must send it to the State Legislature within 3 months for reconsideration
6. In the ordinary course, a bill must be sent back by the President for reconsideration by the State legislature under the proviso to Article 201, only once.
I regret I cannot agree with these directives, as they tantamount to virtually amending Articles 200 and 201 of the Constitution, something only Parliament can do, vide Article 368.
Article 200 of the Indian Constitution states :
” When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the . House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom ”.
It may be noted that no time limitations are fixed in this provision for doing the acts mentioned in it. Now by a judicial verdict time limits are sought to be imposed, which is really amending the Constitution by a judicial verdict, a power given only to Parliament by Article 368.
I am reminded of the Supreme Court’s directive in the Second Judges case that if the Govt of India returns a name recommended by the Supreme Court Collegium to the Collegium, then if the name is reiterated by the Collegium, the Govt must make the appointment.
https://indiankanoon.org/doc/753224
Despite this directive, the Govt did not appoint many persons as Judges of the High Courts whose names had been reiterated by the Supreme Court Collegium
The Supreme Court Judges must realize that the Govt of India is not a weak entity which can be coerced or pushed around. The Govt did not abide by the judicial directive of the Supreme Court that it must appoint a person whose name had been reiterated by the Collegium. What can the Supreme Court do about such refusal by the Govt of India to comply with its directives ? Will it issue a notice for contempt of court ? To whom ? There is no point issuing it to the Law Secretary, because he will say that he is only a small fry carrying out orders of his political masters, the Prime Minister and the Union Law Minister. So will notice be issued to the PM or the LM ? And does the Supreme Court have a police force to arrest them and send them to jail ?
All this is absurd speculation. At the highest level of the State, the organs of power cannot adopt a confrontationist approach and attitude.
On at least two notable occasions, US Supreme Court decisions have been rendered unenforceable as a result of a President’s refusal to accept them.
In Worcester v. Georgia (1832), the Supreme Court overturned the conviction of a missionary living among the Cherokee Nation for refusing to take an oath to obey the laws of Georgia. In an opinion written by Chief Justice John Marshall, the Court held that the Cherokees constituted an independent political community to which the state of Georgia could not apply its laws. Accordingly, the Court ordered Worcester’s release from custody.
Georgia’s governor refused to release the missionary, vowing to defy the Court’s decision. President Andrew Jackson refused to intervene, maintaining that Georgia had the right to apply its laws to any person living within its borders. Jackson also embraced the view that both the executive and legislative branches had as much right as the judicial branch to interpret the Constitution, remarking, “John Marshall has made his decision, now let him enforce it.” Eventually, Jackson acted in direct contravention of the Court’s decision in Worcester. Ignoring the Court’s ruling that the Cherokees were an independent people entitled to the land on which they lived, Jackson sent federal troops to evict them. The result was the Cherokees’ forced and deadly migration west along the infamous Trail of Tears.
In 1861, another Chief Justice, Roger Taney, found himself in a showdown with the president over a judicial ruling. Early in the Civil War, President Abraham Lincoln authorized his military commanders to suspend the writ of habeas corpus along troop transport routes between Philadelphia and Washington, D.C. Military authorities arrested John Merryman, a Maryland farmer, who had allegedly committed acts of sabotage against Union troops. In response to a petition from Merryman, Taney issued a writ of habeas corpus commanding General George Cadwalader to produce Merryman in court and explain the justification for his detention.
General Cadwalader ignored the writ, refusing to bring Merryman to court and, in response to another order from Taney, declined to appear himself.
In his opinion in Ex parte Merryman Taney declared that in suspending the writ of habeas corpus, Lincoln had overstepped his constitutional authority by exercising a power that belonged solely to Congress. Taney recognized, however, that with the military certain to ignore any order he might issue, his ruling could not be enforced without the President’s cooperation. Ordering that a copy of his judgment be sent to Lincoln, Taney noted, “It will then remain for that high officer to determine what actions he will take to cause the civil process of the United States to be respected and enforced.” Lincoln paid no heed to Taney’s opinion and continued to maintain that he had the authority to suspend habeas corpus.
I do not dispute that many Governors are behaving improperly. But I submit that an activist approach by the judiciary to remedy the situation will only create a host of problems for it.
Already there is a lot of criticism of the Supreme Court decision creating a Collegium system for appointing judges. Nowhere in the world do judges appoint judges, nor does the Indian Constitution contemplate of it.
According to Lord Cooke, the Collegium system was created by a ‘sleight of hand’ by the Indian Supreme Court ( see his article ” Where angels fear to tread ” ). There is no mention of a Collegium in Article 124 of the Constitution. By creating it, the Supreme Court has amended the Constitution, something only Parliament can do, vide Art 368
https://www.theweek.in/…/opinion-collegium-system-is….
In Divisional Manager, Aravali Golf Club vs Chander Haas, 2007, the Supreme Court observed ( vide para 20 of its judgment ) :
” Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains ”.
In my opinion, judicial humility should prevail over judicial activism. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State.
It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism’s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of interbranch equality. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the political field, almost inevitably legislators, politicians, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects. The constitutional trade off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.I respectfully submit that the decision in question requires reconsideration by a Constitution Bench. In my opinion, the
remedy of malfunctioning of the legislature and executive must come from the people, not the judiciary.
