In a significant development, the Supreme Court's recent advisory opinion on the powers of Governors has been criticized as deeply flawed by constitutional experts. The opinion, which states that courts cannot impose fixed timelines for Governors to act on bills passed by state legislatures, has reignited the debate over the constitutional role of this nominated post.
The Genesis of the Controversy
The issue reached the apex court after Tamil Nadu Chief Minister M K Stalin moved the Supreme Court earlier this year. The Governor of Tamil Nadu, R N Ravi, had been withholding assent on several bills for a considerable period. On April 8, a two-judge bench of the Supreme Court ruled that the bills were deemed passed. It also set a general precedent that Governors must act on bills within three months, failing which assent would be considered given.
This decision prompted the President of India to seek an advisory opinion from the Supreme Court under Article 143 of the Constitution on May 13. The central question was whether courts have the authority to prescribe deadlines for Governors and the President to clear bills. On November 20, a five-judge Constitution Bench delivered a unanimous but unsigned opinion, holding that the Supreme Court cannot impose such timelines.
The Flaws in the Advisory Opinion
While the advisory opinion is not binding on any court, its reasoning has been called into question. The summary of the 111-page judgment states that the Governor has three options under Article 200: to assent, to reserve the bill for the President's consideration, or to withhold assent and return it with comments.
On the critical issue of delay, the judgment notes that in "glaring circumstances of inaction that is prolonged, unexplained, and indefinite", courts can issue a mandamus for the Governor to act within a "reasonable time." However, it fails to define what constitutes "prolonged" inaction or what a "reasonable time" is. This leaves a vacuum of interpretation, with examples like a bill pending with the West Bengal Governor for nine years and the Tamil Nadu case of over three years highlighting the problem.
Contradicting the Framers' Vision
The analysis argues that the advisory opinion ignores the original intent of the Constitution's framers. It heavily cites Dr. B R Ambedkar, Chairman of the Drafting Committee, who explained the Governor's role during the Constituent Assembly debates on May 31, 1949.
Ambedkar explicitly stated that the Governor was required to follow the advice of his Ministry in all matters and had no independent functions. He famously described the Governor's position as so limited and "ornamental" that very few would contest an election for it, which was why the post was made nominated.
The current advisory opinion, by contrast, is seen as elevating this "ornamental" figure to Olympian heights, granting undue discretion that can stall the legislative work of elected governments. In a parliamentary democracy, allowing an unelected official to indefinitely impede the will of an elected legislature is viewed as an affront to democratic principles.
The writer concludes that the opinion should remain merely advisory. There is a pressing need for either the Supreme Court in a binding judgment, or Parliament through legislation, to clearly define the powers and limitations of the Governor's role to prevent its misuse. The piece ends with a poignant quote from Constituent Assembly member Biswanath Das, a former Prime Minister of Orissa, who questioned the utility of maintaining the post if its functions were not worth the public money spent on it.
