SC exposes TN Governor’s ‘chokehold’ tactics

In a historic judgement today on the issue of the delaying tactics of the Tamil Nadu Governor withholding his assent to Bills passed by the Tamil Nadu state legislature, the Supreme Court of India has upheld the constitutional design of India’s federalism and reaffirmed the supremacy of people’s will as much in the arena of Indian states.

What has been underscored by this judgement is that democratic politics in the states is not subordinate to Central politics and has its own arena of lawful representation and sovereign expression.

Although the judgement per se underlines constitutional morality in terms of what the governor ought not to be doing, and that his real duty is rather to facilitate legislative action to serve public interest, the timing has been politically appropriate. Specially, as many southern states — Kerala and Telangana, among them — as also the northern state of Punjab have been feeling the heat of the governor withholding his assent to Bills passed by the state legislature.

In this particular case, the court reminded the TN Governor that he was not an agent of the Centre but a public functionary. And, sitting over these Bills for long periods of time — stretching over two years, which is just about half the term of the elected Assembly.

This type of delay was, in effect, a “chokehold" on the state legislature in order to thwart and break the will of the people, the top court said in its order.

Under Article 168 of the Indian Constitution, the governor is a part of every state legislature. As such, it is the duty of the state legislature, having been elected by its people, to legislate in public interest. It is, therefore, becoming of the governor to guide, reflect and complete the legislative process and serve the will of the people.

It is in this light that the Supreme Court noted in its judgement that the state legislature is an outcome of a democratic process and better attuned to legislate to ensure the well-being of the state’s people.

The court warned that the governor must be conscious not to create roadblocks or chokehold the state legislature, which in effect breaks the will of the people of the state for partisan political ends.

Also, any express action that went contrary to the will of the people would be a “renege" on the Constitutional oath.

Withholding assent to Bills is not a mere dilatory tactic, but in effect exercises a form of discretionary veto, which is not permissible either under the statutory norms of democracy nor in the design of federalism.

In writing these observations, the court reminded His Excellency (in this case, the Governor of Tamil Nadu) that he or she was not an agent of the Centre but a public functionary under the oath of the Indian Constitution, which he/she must uphold.

Further, the court prescribed time limits within which the Governor can henceforth send back Bills for reconsideration or for the President’s consideration and within which, he must give his assent.

The entire process of gubernatorial review is now clearly subject to judicial review.

The court has gone so far ahead as to consider these Bills to have been passed and enacted since the governor has no powers of absolute veto or pocket veto over legislation that has been considered, passed and even reconsidered by the state legislatures.

In its emphatic view, the court has now ordered the observance of federal principles of governance even as the majority of rule of the BJP at the Centre have, in effect, had their lever of control in state politics through governors they have appointed.

A small but noticeable outcome is the fillip this judgement has given to federal political expression. In Tamil Nadu, the Patakali Matkal Katchi (PMK), which has been an ally of the BJP in the 2024 Lok Sabha elections, has gone against its ally and praised this SC order.

The PMK has also asked for immediate appointment of vice-chancellors in the state public universities (which had been held pending by the Governor) to serve the interests of its students from socially marginalised families.

Similarly, Kerala has asked the SC that it has a similar set of grievances pending before the court (seven Bills that the Governor withheld assent to for 33 months) and that the matter be listed under the same Bench led by Justices JB Pardiwala and R Mahadevan.

It is notable that one of the Kerala Bills pertains to public health measures to be taken up post-Covid. What is the possible reason why assent must be withheld on development and welfare issues that are best left for governments that are closer to people?

Besides, the division of powers in the three lists sets out clear areas for legislative action by the Centre and the states. Stalling state legislative action through the backdoor, without due application of constitutional propriety is an incursion of state power.

The SC order also establishes faith in the system, restating federal rules of the game. For the moment, the TN Governor must resign and uphold the non-partisan stature of his chair.

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