20

May

Judiciary vs Executive: A Constitutional Tussle Intensifies

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A close-up of a person with glasses AI-generated content may be incorrect.The conflict between the Modi government and the judiciary escalated sharply in April 2024, when a Supreme Court bench comprising Justices JB Pardiwala and R Mahadevan invoked Article 142 to break a deadlock between the Tamil Nadu government and Governor RN Ravi. The court declared the Governor’s prolonged refusal to assent to 10 Bills passed by the state legislature as "illegal and arbitrary."

This judgment marks a significant check on the executive's growing attempts to exert control over constitutional authorities and state institutions. Since coming to power in 2014, the Modi government has often been accused of undermining judicial independence. A prominent example was the introduction of the National Judicial Appointments Commission (NJAC) Act, aimed at replacing the Collegium system of judicial appointments. The Supreme Court struck down the NJAC in 2015, a verdict that sparked sharp criticism from the BJP-RSS ecosystem, including top leaders like Prime Minister Narendra Modi and Home Minister Amit Shah.

Since then, the judiciary has faced a barrage of criticism from BJP leaders, ministers, and even high constitutional officeholders. Vice President Jagdeep Dhankhar’s repeated remarks questioning judicial authority exemplify the broader trend of executive interference.

Amid this backdrop, the newly appointed Chief Justice of India, Bhushan Ramkrishna Gavai, offered a balanced response to questions about the supremacy of institutions. “The Constitution of India is supreme,” he said, “and all three pillars—Judiciary, Parliament, and Executive—must work together to uphold it.”

Chief Justice Gavai's remarks, especially regarding Article 142, are significant given the recent Supreme Court ruling that effectively imposed a timeline for Governors and the President to act on state legislation returned for reconsideration. The verdict is seen by some as judicial overreach, but others interpret it as a necessary assertion of constitutional balance.

Column at a Glance
In April 2024, tensions escalated between the Modi government and the judiciary when the Supreme Court, led by Justices JB Pardiwala and R Mahadevan, invoked Article 142 to declare the Governor of Tamil Nadu's refusal to assent to 10 state bills as "illegal and arbitrary." This ruling is seen as a significant check on executive overreach, particularly given the Modi government's history of undermining judicial independence, exemplified by the failed National Judicial Appointments Commission (NJAC) Act.
Wednesday Wisdom
By Satish Misra
Newly appointed Chief Justice Bhushan Ramkrishna Gavai emphasized the need for collaboration among the judiciary, parliament, and executive to uphold the Constitution. The ruling also prompted President Droupadi Murmu to seek the Supreme Court's opinion on the Governor's powers, highlighting ongoing tensions regarding constitutional authority. Ultimately, the Supreme Court's decision aims to preserve the balance of power and protect the autonomy of state governments against central interference, raising critical questions about the limits of executive power in India.

 

Following this ruling, President Droupadi Murmu sought the Supreme Court’s opinion on several key constitutional questions. In a Presidential Reference, she asked whether Governors are bound by the advice of their Council of Ministers under Article 200 of the Constitution, and whether the exercise of a Governor’s discretion is justiciable. She cited Article 361, which grants the President and Governors immunity from legal accountability for their official acts, to question whether courts can impose timelines or dictate how constitutional powers should be exercised under Articles 200 and 201.

The April judgment emphasized that the court should normally avoid matters of political discretion—adhering to the doctrine of “political thicket”—but made an exception in cases where constitutional principles are at stake. “Where a bill is reserved on the grounds of democratic peril and constitutional validity, the executive must exercise restraint,” the bench ruled. It further stated that when legal or constitutional questions arise, it is the judiciary—not the executive—that holds the final word.

“In such cases, the Union executive should refer the matter to the Supreme Court under Article 143,” the bench said. “The executive is not empowered to act as a constitutional court in determining the legality of a bill.”

The ruling, in essence, seeks to rein in the central government's use of the Governor’s office to obstruct the functioning of elected state governments—a recurring theme in several non-BJP-ruled states. The court’s directive sets a precedent that may limit the Executive's capacity to delay or derail legislation passed by state assemblies.

However, the Modi government appears to view this judgment as a constraint on its authority. President Murmu’s reference to the court—clearly made on the advice of the Union Council of Ministers—can be interpreted as an attempt to reclaim executive discretion and challenge judicial oversight.

This unfolding constitutional face-off raises a broader question: who is overreaching? While the judiciary has indeed expanded its role in some cases, often stepping in where other institutions have faltered, the greater concern appears to be the Executive’s bid for unchecked power. The increasing centralization of authority, marginalization of the opposition, and efforts to undermine independent institutions, including the judiciary and media, paint a concerning picture.

Governors, ideally non-partisan constitutional figures, are now openly seen as extensions of the central government in several states. This not only erodes federalism but also disrupts the balance envisioned in the Constitution. When Governors block or delay legislation for political reasons, the constitutional machinery itself is put at risk.

In this context, the Executive seems more guilty of overreach. The Supreme Court, by asserting its constitutional mandate, is seeking to preserve institutional balance rather than disrupt it. While judicial overreach remains a valid concern in a healthy democracy, it is the Executive’s quest for unfettered control that demands greater scrutiny today.

At stake is not just the autonomy of the judiciary but the very essence of constitutional governance. The question is not whether the Judiciary or Executive is supreme, but whether all arms of the state can act within their defined limits, under the unambiguous supremacy of the Constitution of India.

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( The author : A veteran journalist and commentator on geopolitical affairs, Dr Satish Misra is associated with Mediamap News Network )

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