Governor’s Assent Case:

Introduction: A New Front in the Battle for Democracy

In India’s constitutional courts, the latest flashpoint is not about elections, not about federal finances, not even about free speech. It is about something seemingly procedural: how long a Governor can sit on a Bill passed by an elected Assembly before giving assent or sending it back.

At first glance, this may sound like a mere administrative detail. But the case currently before the Supreme Court has spiraled into a defining debate on the limits of judicial power, the scope of executive authority, and the role of constitutional conventions in a democracy.

The Government of India insists that the Supreme Court is crossing the line — judges, it argues, can interpret the Constitution but cannot rewrite it by imposing deadlines. The Constitution, after all, is silent on such timelines.

The Supreme Court, for its part, counters that democracy cannot survive if Governors act as political agents and indefinitely stall Bills passed by elected legislatures. If the Constitution is silent, the Court suggests, it is the judiciary’s duty to fill that silence with principles that protect democracy.

But beyond this institutional tug-of-war lies a deeper truth: the entire confrontation is less about the Governor’s role and more about how political parties have captured constitutional offices. Both the Government and the Court are posturing for supremacy, but neither is confronting the elephant in the room — the way in which India’s political party system has distorted the very balance of powers that the Constitution’s framers so carefully designed.

Government’s Position: Judges Cannot Legislate

The Centre’s argument is blunt and direct:

Judges can interpret, but cannot legislate.
Fixing timelines for Governors is equivalent to amending the Constitution, something only Parliament can do.
The Constitution deliberately left the Governor’s role flexible, trusting in constitutional morality and conventions.

From the Government’s perspective, judicially imposed deadlines would be nothing short of rewriting Article 200, which sets out the Governor’s options: assent, withhold assent, return the Bill with recommendations, or reserve it for the President’s consideration. Notably, Article 200 does not prescribe any timeline.

To impose one now, the Government says, is to assume powers the judiciary does not possess. The risk, it warns, is judicial overreach — courts stepping into the legislative and executive domain under the guise of interpretation.

Supreme Court’s Position: Guardians of Democracy

The Supreme Court, however, frames the issue differently:

Democracy collapses if Governors indefinitely sit on Bills.
Judicial interpretation must step in when constitutional silences are exploited to create paralysis.
The Governor is not an independent veto-wielding authority; he is bound by the advice of the Council of Ministers.

From this angle, the Court sees itself not as rewriting the Constitution, but as protecting its underlying spirit. The Constitution may not have fixed timelines, but that silence cannot be abused to paralyze legislatures.

To the Court, this is not judicial overreach but judicial responsibility: ensuring that unelected constitutional authorities (Governors) do not derail the functioning of elected governments.

The Real Issue: Political Capture of Constitutional Offices

Both sides invoke the Constitution. Both claim fidelity to its scheme. But the real conflict is not textual — it is political.

The framers of the Indian Constitution did not even mention political parties. They designed a system where sovereignty rests with the people, mediated through institutions, not through party structures. By omitting parties, they hoped to prevent the domination of organized groups over individual conscience and constitutional morality.

Yet today, political parties are not just participants in democracy; they are its gatekeepers. The Governor is appointed on political lines. The President, despite being elected through an ostensibly independent electoral college, is often treated as a political appointee. Even the Vice President’s office — constitutionally detached from parties — has been captured by partisan maneuvering.

This capture has had devastating consequences. It has reduced the President of India to what critics call a rubber stamp, with the Supreme Court itself reinforcing this diminished role. The so-called “guardian of democracy” has been unwilling to recognize the President as the true constitutional counterbalance.

The present tussle over Governors is, therefore, not a neutral constitutional debate. It is a political power play, where both the Government and the Court are more interested in projecting dominance than in restoring the framers’ vision.

Article 200: The Text and the Spirit

Article 200 is central to the current case. It provides the Governor with four choices when a Bill is presented:

Assent to the Bill.
Withhold assent.
Return the Bill to the legislature with recommendations.
Reserve the Bill for the President’s consideration.

Crucially, Article 200 does not prescribe a timeline.

Why? Because the Constitution’s framers trusted that conventions, fairness, and democratic principles would guide the Governor. The absence of a timeline was not an oversight. It was a deliberate reliance on the unwritten norms of constitutional morality.

If Governors were expected to function in the spirit of democracy, there was no need for rigid deadlines. But when political parties convert Governors into partisan agents, the silence becomes dangerous. That silence is precisely what the Court now seeks to fill.

How Political Parties Broke the System

Let us be clear: this entire case exists only because conventions have collapsed.

Governors are no longer neutral. They are extensions of ruling parties at the Centre.
Presidents are no longer independent umpires. Political parties openly interfere in their elections, turning what should be a non-partisan head of state into a party-backed nominee.
Vice Presidents, too, are reduced to partisan figures, even though the Constitution intended them to be above party control.

This is not what the framers envisioned. The architects of the Constitution wanted the President to be the supreme constitutional authority — not a ceremonial figurehead, and certainly not a party appointee.

Yet both the political class and the judiciary have conspired to ensure the President remains weak. Even in the present case, the Court is unwilling to assert the President’s authority as the ultimate safeguard of democracy. Instead, it seeks to regulate Governors through judicially crafted deadlines, further entrenching the President’s role as merely formal.

Government vs Court: Both Claim Supremacy

In this light, the current battle is less about democracy and more about institutional one-upmanship.

The Government wants to protect executive autonomy, keeping Governors as instruments of central control.
The Court wants to protect legislative sovereignty, ensuring state assemblies are not undermined.

Both positions appear noble. But both are also exercises in dominance. Neither side is truly addressing the deeper malaise: the distortion caused by political parties.

Constitutional Silences: A Dialogue, Not a Tug-of-War

Some scholars argue that this is less a power struggle and more a dialogue about constitutional silences. The Constitution often leaves gaps, expecting conventions to fill them.

But when conventions fail — as they have with partisan Governors — courts feel compelled to step in. The question is whether such judicial intervention restores balance or creates new distortions.

In truth, silence was never the problem. The problem is that political parties have trampled over those silences, converting trust-based conventions into partisan weapons.

The Supreme Court’s Blind Spot: The Presidency

If the Court were truly committed to protecting democracy, it would recognize the President of India as the ultimate guardian.

The President’s election process was designed to ensure independence, free from party interference.
Political parties have undermined this process, turning the President into a symbolic figure with the 24th, 42nd, and 44th Amendments—have eroded the President’s discretionary powers and supremacy.
Instead of restoring the President’s rightful role, the Supreme Court has treated the office as subordinate to Cabinet advice.

Thus, even as the Court claims to defend democracy, it implicitly supports a framework where the President is denied authority — a framework that benefits political parties at the cost of the people’s sovereignty.

What the Framers Intended

The framers of the Constitution deserve the highest praise for their wisdom and foresight. They understood that democracy could not survive if captured by factions. By deliberately omitting political parties, they sought to prevent their dominance.

They designed a constitutional structure in which sovereignty flows from the people, through institutions, not through parties.

But today, the exact opposite prevails. Parties dominate institutions, reducing constitutional offices to extensions of partisan power.

The Governor’s assent case is just one manifestation of this larger crisis.

The Way Forward: Restoring the Framers’ Vision

De-politicize the Office of Governor: Governors must return to being neutral constitutional heads, not party operatives.

Reinforce Presidential Oversight: The President must actively oversee Governors’ conduct, recalling them if they breach their oath. Oath violators must be held accountable and punished.

Limit Judicial Overreach: Courts should not legislate or impose deadlines, but can hold Governors accountable by demanding reasons and ensuring transparency.

Public Re-Awakening: Citizens must reclaim their sovereignty from political parties, recognizing that the Constitution belongs to them, not to party organizations.

Closing Argument: Beyond Deadlines

The current Supreme Court case is being framed as a debate over timelines. Should Governors be forced to act within a fixed period? Or should they be allowed to wait indefinitely?

But the real question is much bigger: who truly governs India — the people through their Constitution, or political parties through their machinery?

The silence of Article 200 was never dangerous. It became dangerous only when political parties converted Governors into partisan agents. The President was never meant to be a rubber stamp. He became one only when political parties hijacked his election.

The Court may claim to be protecting democracy. The Government may claim to be protecting the Constitution. But until India confronts the deeper issue of political capture, these battles will remain surface-level power plays.

The Supreme Court has right to intervene, but its role should not be to set arbitrary deadlines. Instead, it must demand accountability: Why is the Governor indecisive? What justification exists for delay? If the reason is partisan loyalty, then the Governor has violated the oath of office and must be recalled and held accountable—the true constitutional remedy, not judicial micromanagement.

In the end, the Governor’s assent case is not about timelines at all. It is about whether India has the courage to reclaim the Constitution from political parties and restore sovereignty to the people, where it belongs.

The author is a constitutional researcher and advocate for democratic accountability.

Tags: #IndianConstitution #PresidentialPowers #BasicStructure #Amendments #Democracy #Legal Reform #Indian Politics #Dream India #Governor’s Assent Case

Wednesday, August 27, 2025