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Was this a case of judicial overreach, or a case of ensuring Governors acted within their Constitutional powers, did not abuse their powers? Two lawyers, Dushyant Dave, Supreme Court, and Shrimati Venkatachari, Madras High Court, wrote informative columns in newspapers. Dave refers to Shamsher Singh vs State of Punjab and Nabam Rebia vs Deputy Speaker, Venkatachari refers to S R Bommai vs Union of India and Nabam Rebia vs Deputy Speaker. Both Dave and Venkatachari rely on Articles 200 and 201 of the Constitution. Both make legal arguments.
Are legal arguments enough, or do we need to look beyond, go further into the realm of the morality of decision-making? Can we answer the question without factoring in the (Venkatachari headline) “freefall” that democratic institutions, which ought to have operated as citizens’ safeguards, have experienced in the last decade? What purpose must legislation serve, and what agenda does it subserve? What if legislation intended to uphold Constitutional values operates in practice to subvert them?
Can we ignore the fact that students and activists have remained locked up for years together on flimsy grounds and have been unsuccessful in securing bail, while those who actively instigated violence not only roam free but have graduated to political office? Can we ignore the fact that one media person secures bail at a special hearing of the Supreme Court while another actual journalist languishes in jail for years, youngsters putting up posters supporting Palestine are arrested while another who refers in hate-speech to a Hamdard drink as “Sharbat Jihad” which “shocks the judicial conscience” merely “agrees to take down” his videos, no charges?
Last-ditch clutching-at-straws efforts see a scramble to garner support, circulation of a video, a Muslim Joint Commissioner at an International body, speaking of violence in West Bengal and asking why “Jai Shri Ram” slogans are communal but “Allah hu Akbar” is secular, insinuating the latter is linked with communal violence, the hashtag on the video being “I support Waqf Amendment” (he pronounces it Wakaf) while in a strangely suggestive inadvertent faux pas, the visible flag behind him is not India’s but Israel’s… what is going on?
Can citizens keep “Looking Away,” as the title of Harsh Mander’s book laments, from the inequities that stare them in the face? When a section of society is disallowed prayers on the very same roads that processions of others are allowed on, when one section celebrates its festivals with sloganeering and weapon displays before prayer halls of another, when legislation is crafted to dissuade conversion, when delimitation is to tweak election results, when property transfers between communities are restricted, when education is sought to be converted to indoctrination by State controlled curriculum, when academic content controllers remove specific historical and religious content and interpolate another based on desire to project a “sponsored” political agenda-driven version… if something unpleasant is getting exposure, resort can be had to diversions and red herrings.
Can we ignore erosion of rights when legislation interferes with food choices, when hijabs are ripped off and people are lynched because mobs stand weaponised into extra-judicial enforcers of their interpretation, right or wrong, of what the law declares by undebated legislation, when exercise of clothing rights of minority women cause denial of their access to education, when bulldozers illegally raze houses while gleeful “noise-anchors” hail it as “justice”, when judges participate in sectarian political events and express thoughts that politicians ought to hesitate expressing, when in just one region (Marathwada), driven by despair, every day three farmers commit suicide (news figure is 296 in 90 days, Jan. to March 2025, 2.98 per day), should “the system” ask questions or should citizens’ apprehensions be sent on vacation to see them continue to trust a legislating machinery masquerading as a moral power considering itself above judicial scrutiny, beyond Constitutional interrogation? What would be the moral standing of legislation that fails to address these crucial issues?
The tussle in the latest round is, when Article 200 requires assent of the Governor, and Article 201 makes possible reference to the President, must the Governor act within a deadline, via “judicial duress” to assent to Bills sent twice by State Cabinets, or can he refer such Bills to the President? The fabricated sub-issue is, is it not a duty of the Governor to ascertain whether there would be conflict with Central Legislation or unconstitutionality? Is the judiciary’s laying down a deadline as above, not judicial overreach, an encroachment on Parliamentary power based on people’s political will? Cannot populist State Cabinet decisions encroaching on Central power be regulated by Governors, or should they nevertheless be allowed notwithstanding inconsistency? If so, why does the Constitution require gubernatorial assent at all?
Venkatachari crafts her stance: “If a state passes a bill that violates national standards, the governor’s inability to reserve it after it is repassed could force assent to flawed laws, leaving litigation as the only recourse. The judgement shuts the door on even limited post repass discretion, undermining the governor’s role as a constitutional sentinel.”
What would be the undefined “national standards” (as distinguished from Constitutional standards) she does not state, but the country has seen how bills are passed with members of the opposition suspended and compelled to walk out. As a lawyer, does Venkatachari not know that it is ultimately the Courts that will determine the Constitutionality of all laws, “flawed” or not?
While admitting that this “is a strong pro-democracy ruling”, she fears “it can be misused”. Will she let us know what she thinks of other flawed laws which no Governor has checked as a “Constitutional sentinel”, laws that are being regularly selectively misused, such as the law against religious conversion, the law against “unlawful activities”, the law against hate speech, the law that sees people locked up for “hurting religious sentiment” of others… and what she thinks of hostile-mindset substitutes for laws that allow Machiavellian officialdom to demolish houses of certain people on mere accusation? From her legal experience and social and political knowledge can she cite a single instance, one single instance, where there was any review of any of these by any Governor of any state, BJP-ruled or not? She ignores the fact that checks and balances are not between governor and Legislature but between the three institutions that constitute government: parliament (or legislature), executive and judiciary. Governor and President, figureheads, figure nowhere there.
Venkatachari states “while the Court’s intention is laudable, its ruling veers towards judicial overreach with possible unintended consequences for India’s federal structure, legislative scrutiny and constitutional balance, disincentivising centre-state dialogue and in subjects of legislative overlap as in the Concurrent List, results in exclusion of the President’s Constitutional oversight in favour of legislative supremacy at the state level”. Perhaps correctly she adds, “While delay by governors is problematic the remedy should come from Parliamentary legislation or Constitutional amendment, not judicial command.”
That remedy is purely illusory, if not delusional. The problem is that we have a huge majority situation in Parliament, and we have seen what has been coming as legislation from Parliament, and that the same stands subject of disconcerting media reports. Besides, that legislation itself is, for large sections of the population, suspect, both for content as well as for the manner of its passing.
She ends, “While the Supreme Court’s verdict is a progressive judgement with democratic intent, when judicial zeal fills every constitutional silence, we risk replacing checks and balances with a constitutional straightjacket. Reform is essential – but restraint is vital.” When the conduct of Parliament sees suspensions and walkouts and the voices of dissent are silenced, when laws made by Parliament after large sections of members stand suspended are perceived as suspect or aimed at disenfranchising, disempowering and marginalising, resulting in selective erosion of rights of some segments, it would be rather naïve to expect the same Parliament to also take corrective steps to bring that legislation in conformity with standards of constitutionality, to undo what it has itself done. As the South African saying goes, “The Masters tools will never dismantle the Masters House.” So why expect the impossible?
To be continued
This post was last modified on April 27, 2025 5:37 pm