M K Stalin’s Pyrrhic Victory against Governor R N Ravi’s ‘No Ball’

SC verdict on Governors’ powers over state Bills

The Supreme Court of India, delivered a bombshell verdict on April 8th 2025, by holding that Tamil Nadu Governor’s conduct on 10 re-passed Bills was ‘unconstitutional’, and the Court deemed the 10 Bills to have received assent; fixed time limit of one to three months for Governors to take a call on future Bills, citing sense of expediency in Article 200; and held that Governors do not have a “pocket veto”. This two bench verdict junked the concept of division of separation of powers, thereby creating a tectonic shift that will have far-reaching consequences.

In a constitutional democracy, the power of government is divided so that the legislature makes the laws, the executive authority carries them out, and the judiciary operates quasi-independently. These divisions are sometimes described as a “separation of powers.” In actual practice, however, such divisions or ‘Lakshman Rekha’ are rarely neat, and in many democratic countries, these powers are overlapping and shared as much as they are separated. Legislatures attempt to manage programs through detailed regulations, executive offices routinely engage in detailed rulemaking, and both legislators and executive officers conduct judicial-style hearings on a wide range of issues.

The concept that these three branches should be separate and independent — the doctrine of separation of powers — has been followed by governments since ancient Greece to ensure that no single person or group of people can amass absolute power. Independently and together, these three branches of government — or pillars of democracy — are crucial for the functioning of any democratic country. And if the three branches are separate and independent, the system can survive even if one branch fails — becomes corrupt or is filled with incompetent people. One branch, as per the doctrine of separation of powers, cannot interfere with the other two.

In India, in the Constitution, there is no outright demarcation that these three branches have separate powers and should remain independent. There are Articles in the Constitution that imply the separation of powers, though. For instance, Article 50 specifies that the state should keep the executive and the judiciary separate; Article 122 says courts cannot look into proceedings of Parliament; Article 121 restricts Parliament from discussing the conduct of a Supreme Court or High Court judge (unless the legislature is looking for impeachment); Article 361 stipulates that the President or a Governor cannot be called for a criminal proceeding during their term. Hence, it is incorrect to believe that the separation of powers is watertight and impermeable. Whenever glaring transgressions occur, sparks are bound to fly. The current ruling in Writ Petition (CIVIL) NO. 1239 OF 2023 THE STATE OF TAMIL NADU …PETITIONER(S) VERSUS THE GOVERNOR OF TAMILNADU & ANR. …RESPONDENT(S) literally junks the concept of separation of powers and is bound to be a bull in a China Shop.

In a nutshell, the case evolved when 12 Bills of Tamil Nadu, mostly dealing with appointments of Vice-Chancellors in State-run universities, were sent by the State Legislature for consent to the Governor between January 2020 and April 2023. The Governor kept them pending for undisclosed reasons.

The Tamil Nadu government approached the Supreme court in November 2023 against the Governor’s perceived inaction, then the latter quickly referred two of the Bills to the President and proceeded to withhold consent on the remaining 10.

Within days, the Tamil Nadu Assembly re-passed the 10 Bills in a special session on November 18, 2023, and sent them to the Governor again for assent. The Governor, in turn, referred all the 10 Bills to the President for consideration. The President subsequently assented to one Bill, rejected seven and not considered the remaining two.

A Bench of Justices J B Pardiwala and Justice R Mahadevan held that the Governor’s reservation of 10 Bills for the President’s assent is “illegal and liable to be set aside”. Having declared the Governor’s inaction unlawful, the Supreme Court invoked its powers under Article 142 to declare that the re-passed bills were deemed to have received assent. This move raises serious questions of judicial overreach. Article 142 empowers the Court to pass orders necessary to do “complete justice” in a case. But traditionally, this power is invoked only to fill statutory gaps, not to supplement constitutional silences. The distinction is crucial.

By judicially crafting a mechanism for “deemed assent,” the Court has done more than interpret the Constitution — it has effectively added a new provision to it. This crosses the boundary between interpretation and legislation.

There is no constitutional provision that allows a bill to become law by mere passage and re-passage without the Governor’s assent. Creating such a remedy is a function of constitutional amendment, not judicial decree.

One cannot help but ask: What if tomorrow the Governor challenges such deemed assent? Wouldn’t that thrust the judiciary into conflict with the other pillars of democracy, which it ought to avoid?

The more constitutionally correct path would have been to strike down the Governor’s inaction and leave the matter to the political process. Once the constitutional roadblock was cleared, it would have been open to the elected government to notify the re-passed laws in its official gazette and proceed. Any challenge to such action would then be settled in accordance with the law. In other words, the Court should have acted as a constitutional referee, not a legislative substitute.

The Supreme Court’s judgment calls out the delay as malafide by a constitutional office-holder. But by invoking Article 142 to fabricate a remedy not found in the Constitution, the Court may have uprooted the very principles it sought to uphold.

Article 142 (1) enshrines:

• The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
  There is an embedded proviso in Article 142, which wasn’t read by the Apex Court. The Order of the Supreme Court shall be enforceable…in such a manner as THE PRESIDENT MAY BY ORDER PRESCRIBE.
  As per this writer’s understanding, this part restrains the power of the Supreme Court such that, if the Supreme Sovereign Authority -The PRESIDENT doesn’t prescribe anything then the order of the Hon’ble Supreme Court will not be enforceable.

In the light of previous expositions given by Hon’ble Supreme Court, the orders may suffer from Infirmity of Sub silentio (for not reading 142 and 200 in full) & also per incuriam, and in such cases, the orders cannot be precedent and, thereby, not even enforceable.

From the Para 426 of the Reportable Judgment in WRIT PETITION (CIVIL) NO. 1239 OF 2023, it appears that the counsels failed to divert the attention of the Apex Court toward the implied proviso of ENFORCEABILITY enunciated under Article 142. No part of the order will be enforceable if parliament has not made any provision for the same, if the order appears to be repugnant to the Constitutional provision and in such cases if the President doesn’t make any provision then such order will keep lying pending in the domain of the President of India until the Apex Court withdraws it, and it will become void over time, as the Sovereign Authority may never find it fit to approve it.

Neil Gorsuch American Jurist has aptly put it “Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”
Another sequel by way of a Review Petition is likely to be filed, the game will go on.

Note:
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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