AA Edit | Executive powers must be defined in a ‘federal’ India

The Indian Constitution does not expressly define India as a federal state; it is largely the Supreme Court which described federalism as one of the basic structures of the Constitution along with democracy, rule of law and secular character. Constitutional courts have largely been careful in protecting the federal character and have ensured that attempts to concentrate power by the Union government are struck down. However, the approach of the top court on critical issues of late has created an impression that it is okay with trespasses into powers which are critical to the survival of states, enjoying the legislative and administrative powers as prescribed in the Constitution.

The Supreme Court’s refusal to adjudge on the Jammu and Kashmir Reorganization Act, 2019, which bifurcated an Indian state into two and stripped both of the status of a state has widely been criticised for two reasons. One, it left an unconstitutional Act untouched when called upon to adjudicate, and two; it gave the Union government a carte blanche to act with the states in the future. The total glossing over of the imposition of the governor’s rule in the state and the dissolution of the state Assembly as well as affixing a stamp of approval on the appropriation of all the powers of the state by the Union government and Parliament added to the discomfiture of the people who still believed India is a federal state.

Added to this is a very disturbing observation made by the Supreme Court last week while hearing a case filed by the government of Tamil Nadu against the governor of the state on his treatment of the bills passed by the state Assembly. It may be recalled that the governor had returned 10 bills to the Assembly for its reconsideration and the House had promptly readopted them and sent to the governor for his assent. The governor then referred all the readopted bills to the President of India for her consideration.

Article 200 of the Constitution has clearly stipulated that the governor “shall not withhold his assent” for a bill readopted by the Assembly but the court, instead of striking down the governor’s act, took the position that it did not want “to restrain the President of India from acting on the bills” and that the business of governance must go on. The court’s vote-face is shocking, especially since the very same bench had, while hearing the case, decided that a readopted bill has the status of a money bill and that the governor cannot refer it to the President once he exhausted the option of sending it back to the Assembly.

The law-making power of the State assemblies on subjects mentioned in the state and concurrent lists, subject to conditions, is a non-negotiable feature of the Constitution. The founding fathers who vested the governor with the power to refer a bill back to the Assembly as part of the checks and balances system, were, however,  had not an iota of doubt that the same governor “shall not withhold his assent” when it came back to him readopted. The Supreme Court, armed with vast powers, must step in and stop constitutional actors from crossing their limits. The people, in this case 7.21 crore of them, have a right to be governed by the laws passed by the legislature they elected. Allowing the governor to either exercise a veto on the bills or to play hide and seek with them, is essentially denying them that basic right. If the top court refuses to protect it, then who will?