Contested Meanings of the Indian Constitution | Arup Kumar Sen

The recent Supreme Court verdict on April 8, 2025, regarding powers of the governor in the context of Tamil Nadu bears testimony to the contested meanings of the Indian Constitution. To put it in the words of Gautam Bhatia (The Hindu, April 21, 2025): “In a lengthy judgment, spanning 415 pages, the Supreme Court found that there was no justification for the Governor’s actions. Under the Constitution, Governors were entitled neither to exercise a veto nor a pocket veto over the State Legislative Assembly’s Bills. Nor could Governors first return a Bill to the State Legislature, and then refer it to the President; it had to be one or the other…The President, as well, when considering State Bills, could not withhold their assent unless there was a constitutionally sanctioned reason for doing so…The Supreme Court, however, did not stop at simply laying down the law…it went further: first, it laid down specific and categorical timelines within which the Governor and the President were required to consider, and take action, on State Bills…It is important to note that the Constitution itself prescribed no such timelines.” The above judgement has led to public debates about our federal structure.

One serious and sensible observer on judicial issues, Alok Prasanna Kumar, has welcomed one part of the judgement and expressed his alarm about another part of the same. He welcomed “the Court’s latest attempt to check the unconstitutional behaviour of a Governor who behaved more like a colonial viceroy than a constitutional authority.” What he finds problematic is the Court’s power to give a mandamus to the President. To put it in his own words: “…the Court giving itself the power to issue a mandamus to the President does raise some disturbing questions…A mandamus to the President would substantially change the constitutional position that the President acts only on the aid and advice of the PM and cabinet. It would mean that in certain circumstances, the President also acts on the order of the Court. This raises a discomfiting question: Can the Court direct the President to ignore the aid and advice of the PM and the cabinet?” (See The Indian Express, April 18, 2025)

The eminent legal practitioner and scholar of jurisprudence, Indira Jaising, has interpreted the Supreme Court judgment from a different ethical perspective. She argues: “Having reached the conclusion that Articles 200 and 201 do not enable a pocket veto, the question was one of how to remedy the situation. This is where the judgment of the Supreme Court makes an unprecedented breakthrough in holding that the unconstitutional inaction can be remedied with the use of Article 142, which enables the Supreme Court to do ‘complete justice’. Using its extraordinary powers under the provision of this Article, the Court declared that the bills, for which consent had long been withheld, are deemed to be assented to. Acting on the judgment, the government of Tamil Nadu was quick to notify the Acts. Critics have called this an overreach, but I see none here.” She further argues: Truly, the Court has demonstrated that the Constitution is a “labyrinth, not a maze”. When read as a whole, the Constitution is an interconnected web of binding norms which guarantee democratic governance, not a maze which can be a game of snakes and ladders or luck by chance. (See The Indian Express, ibid.)

We, the non-judicial persons, are not competent to judge the legal foundations of the arguments put forward by judicial experts. However, we are convinced that the arguments of Indira Jaising in support of the recent Supreme Court verdict are rooted in the ethics of ‘transformative constitutionalism’.