Neither Article 200 Nor 142 Enables Issue Of Any Command To Governor Or President Of India

Relevant portion of the Preamble of the Constitution of India reads: “Equality of Status and Opportunity and to promote among them all; Fraternity, Assuring the Dignity of the Individual and being the integrity and of nation”.

This is held to be a basic feature of the Constitution of India. Further, in Keshavananda Bharti, it is indicated that whenever there is doubt in regard to the interpretation of any of the Articles, one should look to the Preamble of the Constitution of India.

Three organs of Democracy viz. Legislature, Executive and Judiciary are co-equals. None is superior to or inferior to the other. They are entitled to equal dignity and respect. Their Unity and integrity are sine qua non for governance of the Nation. This is also the basic feature of the constitution of India; and Grund Norm.

Concept of separation of powers, in terms of Article 50 is derived from Constitutional reality, namely equality of status and of opportunity. It is settled law that the separation of powers is the basic feature of the Constitution of India. Legislature, Executive and the Judiciary are to function within the functions set out in the Constitution of India.

People of India have given unto themselves, an elaborate compendium of essential provisions for the Republic of India to govern itself, on Democratic Principles, assuring equality in status and opportunity and the like, as set out in the Preamble of the Constitution of India. The process of interpretation and judicial pronouncements have both streamlined and ordained, in a most appropriate manner, the way of governance by the People of India. One of the aspects slated for discussion in this Article is the Duty of the State Legislature to submit the Bills passed by the State Legislature for Assent of the Governor, in terms of Article 200 and the duty of His Excellency the Governor to accord/withhold consent and return the Bill for fresh consideration.

In the case of Tamil Nadu Vs Lt Governor of State of Madras, a piquant situation arose and the decision rendered therein has created a flutter. What was once a bright and colourful cluster of lovely feathers has now become a distraught collection of feathers into a heap of torn and twisted, broken and bleached, disfigured feathers. Eternity cannot retrieve what is lost in the process of exercise of power conferred by the Constitution.

Role of the State Legislature in the matter of passing Laws, Bills and the like by the State Legislature has to be circumscribed and brought within the provins of certain Articles. Executive head, being His Excellency the Governor of the State, has a say on the Bill reserved for the assent of the Governor, does matter.

Certain rights and obligations and certain provisions of the Constitution can never be destroyed, even by process of amendment under Article 368. These indestructible aspects form the basic structure of the Constitution. They are not capable of being destroyed or diluted in any manner. It was Mr A.R. Cornellious, Hon’ble Chief Justice of the Supreme Court of Pakistan, who propounded the law to say that “In the guise of interpretation, the court shall not affect or destroy the fundamental aspects of the Constitution”.

Following the dicta of this statement of law, Justice Mudholkar in the year 1965, adapted the above statement in Sajjan Singh to hold that “basic features of the Constitution of India cannot be altered at any cost, even by process of amendment of the Constitution under Article 368”. It became the lot of 13 Judges in Kesavananda Bharthi, duly assisted by the great patriot and Senior Advocate Sri N.A Palkiwala, that basic structure of the Constitution is inviolable and would be immune from any amendment to it even under Article 368 of the Constitution of India. What are the basic features/structure of the Constitution have been neatly catalogued and formulated over the years. One of them is the Separation of the Judiciary from the Executive in the public service of the State and the Judiciary.

Article 50 mandates separation of powers between the Executive and the Judiciary. None is unaware of the fact that Article 50 cannot be enforced independently but would enable synthesising of Directive Principles with Fundamental Rights like Articles 13, 14, 19, 21 and Preamble of the Constitution, to achieve Constitutional mandate and ethos. In Ram Jawayya Thakur, (5 Judges) Hon’ble Supreme Court observed that in India Separation of Powers is not observed absolutely. In all humility, this observation of the Constitution Bench can be taken as a confession of inability /unpreparedness of the State to enforce Article 50 and not a statement of law of a binding nature. In the case of reservation provided by State of Bihar upto 65% for appointment to post of Judges in the State Judiciary, Government order was struck down only on the premise that State has no role in the matter of reservation in the appointment of Judges and the same is opposed to the basic feature of the Constitution. Lucidity and clarity with which the Separation of powers, in terms of Article 50, is elucidated by the Supreme Court, holding that separation of powers is a basic structure of the Constitution, makes it re-readable and rewarding.

Equality of Status and opportunity, assured in the preamble, is ABSOLUTE. It is Grundnorm. It is generic and all pervasive. Specie is Separation of powers, which is held to be a basic feature of the Constitution. It is trite to say that Article 50, in Part IV, originates from the Preamble. No wing or pillar of Democracy, is subordinate to the other. They have equal status and opportunity.

In Coelho v. State of Tamil Nadu bench of 7 Judges has categorically held that separation of powers, which is also known as Doctrine of Checks and Balances, is an inviolable basic structure of the Constitution. In the case of NJAC separation of powers and accountability of the Judiciary is diluted in a manner that several loose ends are still left for discussion and have remained unattended.

Recently, just before the retirement of Hon’ble Chief Justice Mr Justice Chandrachud, a bench of 9 Judges has held that a provision of law or Statute by itself or any administrative action or any fiat issued by the State, cannot be struck down on the premise that the same is opposed to basic features of the Constitution. “Liable to be struck down” is different from “indestructible features /structures of the Constitution of India” and stands apart.

Governor /President; Allegiance To Constitution

Oath of office to be taken by the Governor/President is worded and termed specifically in Articles 69 and 159 of the Constitution of India. Oath of office by High Court Judges in Article 219 read with III Schedule, the two formats referred to above are totally dissimilar and the Governor as well as the President are to abide by, follow tenets in spirit and allegiance of the Constitution shall remain undiluted. Oath of office of Judges is on aspects of prejudice and favour, and not more on allegiance to the Constitution.

The Governor is the Executive head of the State. He is responsible for all acts of the Legislature and the Executive. The President is the supreme authority of the Nation. The President has enormous responsibility, power and duty concerning the whole Nation, including the appointment of Judges. Governor/President do not take command from anyone as they are the supreme commanders in their domain. This aspect is a constitutional reality and would assist the dignity of the Individual, the Legislature and the Executive qua Unity and integrity of the Nation. Belittling them is belittling oneself.

Accountability Skewed

The Constitution of India is the Supreme Lex is undisputed and undeniable. Equally, separation of powers and creation of borders/territory for exercise of powers by the three wings of the Democratic Republic of India, namely, Legislature, Executive and Judiciary is clearly defined, and one wing shall not interfere with the other or arrogate to itself the power of the other pillar of Democracy. It is forbidden. The doctrine of Checks and Balances and accountability are part of Constitutionalism and constitutional philosophy.

Whenever there is doubt in regard to interpretation of any Article in the Constitution, one has to read the Preamble and interpret the provisions of the Constitution in the manner suited to uphold Constitutional ethos, achieve constitutional integrity and avoid creation of Constitutional aberrations /turbulence. There is a clear aspect of checks and balances, in that an elected member has a fixed term of office and cannot perpetuate himself or herself in office. He /she has to contest again and get elected upon demonstration of good work done in his/her constituency. He/she is accountable to the voters.

The executive has equally stringent disciplinary norms, and it is bound by Conduct Rules. There cannot be perpetuation in holding the office by the Executive in disregard of conduct. It is only the Judiciary that enjoys immunity from being accountable to the People of India. People of India alone are the Sovereign, the rest are accountable to the people of India. In reality, the Judiciary has assumed immunity on its own dehors any law, in this behalf and has consistently avoided on insisting that the Judiciary is not accountable. Accountability is thus skewed.

On April 8, 2025, Hon’ble Justice J.R. Pardiwala and Hon’ble Justice R Mahadevan disposed of W.P. 1239/2023 filed by the State of T.N. against the Governor of T.N., dwelling on Article 220 of the Constitution of India.

Article 142 does not authorise the deduction that the sanction is deemed to be accorded. This is a misreading and misapplication of Article 142.

Alternatively, one has to see whether the doctrine of Ipso Jure would apply to the fact situation. The doctrine would mean that consequences should follow faithfully and lawfully from a fact situation. In the present case, nothing can follow lawfully or faithfully to infer a deemed sanction as Article 142 is addressed to the interpretation of Law made by Parliament, but not to provisions of the Constitution of India.

Analysis

Courts are not authorised to add or delete from Article 200, as it amounts to amending Article 200 without recourse to Article 368. What cannot be done under Article 368 is sought to be done by the Hon’ble Apex Court in the State of T.N. Case. What cannot be done directly shall never be allowed to be done indirectly.

Article 142 is sought to be availed to construe a deeming provision to say that delay beyond three months in according consent or refusing to accord consent would amount to actually according consent. Interpretation of statute does not authorise this. The Constitution is not a mere statute enacted under Article 246. It is a product of hard work of the Constituent Assembly. Article 200 is an essential feature of the Constitution of India, and it has a role in achieving constitutional integrity.

In the guise of interpretation or doing substantial justice under Article 142, the Supreme Court could not have declared the Law that delay amounts to according sanction. The Supreme Court has committed a supreme error.

In lighter vein, delay on the part of President of India to appoint persons recommended by “Collegium” ( a self created device by the Supreme Court to garner power of appointment of Judges), does not authorise any assumption or deemed appointment of judges and when a judgment is reserved and there is delay, there cannot be a presumption or assumption that by default, parties can claim that there is a deemed judgment in its/their favour. Constitution of India and or its provisions cannot be belittled or diluted.

Avoidable abrasions and turbulence are created by this judgment without the aid and assistance of any provision of the Constitution of India, and the decision requires to be revisited and directions issued thereon to be undone.

Constitutional integrity is facing its “watershed” moment. No price is huge, no effort is burdensome to overcome the situation. The Constitution is Supreme. By unauthorised and unjustified fiction of deeming, essential/ basic or fundamental features shall not be altered. Revisiting of the case is imperative.

The Author is a Senior Advocate.