Why in the News
Recently, Supreme Court of India delivered an opinion in response to the 16th Presidential reference concerning the powers of Governors and President of India regarding State legislation. This opinion has been criticized for potentially undermining the core philosophy of federalism ingrained in India’s Constitution and endangering the will of the people as expressed through elected State Legislatures.
Context and Core Issue
- The Presidential reference was sought following a decision by a two-judge Bench in the Tamil Nadu Governor’s case, which had previously prescribed finite and reasonable timelines for the exercise of the Governor’s powers under Article 200 of the Constitution.
- The subsequent opinion by the Supreme Court, by stating that the Judiciary cannot tie President and Governor to timelines, is contended to have eroded and buried the core philosophy of federalism.
Apprehensions Regarding Constitutional Scheme
Concerns have been raised that this judicial opinion could lead to a situation where:
- States could gradually be reduced to shadow Union Territories with Legislatures, perpetually dependent on the dictates of those in power in the central government.
- The constitutional scheme, which establishes the Union and States as equal partners, with the Government of India being only ‘first among equals’, stands disrupted.
- Governors could effectively wield an unbridled pocket veto, holding States captive and perpetually embroiled in litigation to secure assent for legislation.
Critique of the Supreme Court Opinion
The core arguments against the judicial opinion revolve around the principles of democracy, federalism, and judicial review.
Violation of Democratic Principles
- Governor’s Veto over Elected Legislature: If Bills/laws passed by State Legislature are kept pending by Governor for months, returned for reconsideration, and upon reaffirmation, reserved for President’s assent, an elected Legislature is effectively mowed down before the whims of an unelected Governor. This is considered the very anti-thesis of democracy.
- Role of Unelected Functionary: Governors, being appointees of ruling party at Centre, are often perceived to be acting to accommodate the political agendas of the Government of India. Allowing an unelected despot (Governor) to overrule the will of the people of the State is seen as democratically indefensible.
Disregard for Basic Structure of Constitution
- Necessity of Timelines: A timeline on the exercise of powers by the Governor under Article 200 had to be read therein to conform with the principle of federalism, which constitutes part of the basic structure of the Constitution.
- Reasonableness and Non-arbitrariness: The Governor’s power must be tested on the touchstone of reasonableness, necessitating a reasonable time for decision. Failure to read this timeline permits the Governor to act as an unbridled monarch over an elected Government, violating the threads of fairness, reasonableness, and non-arbitrariness that run through the Constitution.
Immunity from Judicial Review
- Judicial Review as Basic Structure: Judicial Review is itself part of the basic structure of Constitution. No authority, including Parliament, can claim immunity from having its actions tested by judicial review.
- Limited Direction Theory: The Court’s theory of ‘limited direction’ goes against the doctrine of judicial review, the principle of reasonableness enshrined in Article 14, and the constitutional scheme, thereby granting Governors and President powers alien to judicial oversight.
Broader Context: Weakening of the Federal Structure
The opinion is viewed as another step in a series of designed attacks by Centre on federal structure in recent times.
Examples of Federal Overreach and Distortion
- Fiscal Centralisation and Devolution:
- Refusal by the central government to provide compensation to producing States for loss of Goods and Services Tax (GST).
- Cess collected exclusively by central government being used as an excuse to deny sharing of its revenue with States.
- Refusal by central government to fully implement the devolutions recommended by the Finance Commission.
- Conditional Funding and Financial Pressure:
- Forcing States to adhere to a ‘one-size-fits-all’ conditions for central schemes.
- Making schemes conditionally applicable on States agreeing to contribute up to 50% of the scheme’s budgeted expenditure, putting unprecedented pressure on already stressed finances.
- Weaponisation of Central Funds and Agencies:
- Weaponisation of money in central kitty by providing financial support as a quid pro quo for advancing the political agenda of party at Centre.
- Misuse of Central Bureau of Investigation (CBI), Enforcement Directorate (ED), and Income-Tax Department to raid, browbeat, arrest Chief Ministers and Ministers, and bring down Opposition governments.
- Governor’s Fiat:
- The proposed central control through Governor’s fiat is feared to be the ‘straw that broke the camel’s back’ regarding federalism.
Way Forward
- Timelines for exercise of gubernatorial powers are to be ensured so that undue delay is prevented and democratic will is preserved, and such timelines were argued to be necessary to harmonise exercise of Articles 200 and 201 with federal principle.
- Judicial oversight must be reaffirmed so that actions by Governors and President remain susceptible to review on grounds of reasonableness and non-arbitrariness, thereby protecting rights under Part III and preventing unchecked discretion.
- Fiscal decentralisation measures recommended by Finance Commission must be implemented in full so that States are not financially coerced into accepting conditionalities which undermine local governance and policy experimentation.
- Revenue sharing arrangements, especially pertaining to cess and central levies, must be revisited so that revenue streams are not monopolised at Centre to detriment of State functions and welfare responsibilities.
- Mechanisms must be established to insulate enforcement agencies from political misuse so that rule of law is upheld and investigations are not weaponised against political opponents.
- Political practice of timed welfare transfers proximate to elections must be discouraged by strengthening norms of non-partisan fiscal conduct and by empowering autonomous institutions to monitor and flag disproportionate fiscal actions aimed at influencing electoral outcomes.
- Constitutional dialogue involving Centre, States and judiciary must be promoted to restore institutional balance and to ensure that constitutional offices function as guardians rather than usurpers of democratic mandate.
Conclusion
- The Supreme Court’s response to the 16th Presidential reference, by upholding the perceived “unwritten and undefined powers” of the Governor and President regarding State Bills without imposing a timeframe, is feared to sanction an obliteration of core ideas of the Constitution.
- Such a step, when compounded with various instances of the Centre’s overreach into the federal sphere, weakens the constitutional edifice where the will of the people is held hostage to the whims of unelected functionaries, leading to the potential crumbling of democracy.
UPSC MAINS PYQs
1) Though the federal principle is dominant in our Constitution and that principle is one of its basic features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. (2014)
2) Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly pro active role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy. (2014)
3) Many States Governments further bifurcate geographical administrative areas like Districts and Talukas for better governance. In light of the above, can it also be justified that more number of smaller States would bring in effective governance at State level? Discuss. (2013)
