Opinion SC action on TN governor is not overreach. Here’s why
Insofar as the interpretation of the Constitution is concerned, the SC’s word is the last on the subject
In Tamil Nadu Governor case, Supreme Court has defined timelines for Governor and President in the lawmaking process. Did it correct a distortion or overstep? (Illustration by C R Sasikumar) 
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In the course of their duties, judges and lawyers have often questioned the constitutionality of the state’s actions. An example of this is the Supreme Court’s hearing of petitions against the Waqf (Amendment) Act 2025, which was challenged even before the ink was dry on the Gazette notifying the Act. Contrast this speed with the waiting period in the challenge to the Tamil Nadu Governor’s inaction in giving assent to bills sent to him as far back as 2020. A remedy for this has finally been found by the Supreme Court only in 2025. Remember also that the term of an elected government is only five years and, absent consent, the bills lapse with the dissolution of the assembly. Not only would this thwart the “will of the people” by inaction alone, but in a case where the ruling party at the Centre is not the ruling party in the state, it could destroy the federal structure and enable the rule of the Centre over the state. Add to this the fact that governors and presidents are immune to legal proceedings for acts performed in their official capacity. This leaves not just the citizens but also elected governments helpless and without a remedy. Inaction leaves no paper trail and hence, is difficult to challenge in a court of law.
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 provisions 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. Article 142 is subject to the limitation that it can be used only where there is a statutory or constitutional silence. It can never be used against a statutory provision. Insofar as the interpretation of the Constitution is concerned, the Supreme Court’s is the last word on the subject. Such interpretation can be critiqued but must be honoured in a society governed by the rule of law, or challenged through constitutional means.
While the balance of power between Centre and states has been restored with the ruling in The State of Tamil Nadu vs The Governor of Tamil Nadu, the question remains: What of the Governor himself? Does he face no consequences for his inaction in the performance of his duties? This is where the finding of mala fides enters the picture. The court held that “the conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides. There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court. In such a situation, it is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by us in this judgment.”
The logical question to raise is, does the Governor have the right to continue in office despite the finding of mala fides? Demands have already been made for his resignationm which would constitute political accountability, but he has not resigned. So, the question arises, is there a legal remedy? The answer could be a writ of quo warranto, seeking answers to the question: By what authority of law does the Governor continue in office? That, indeed, would be “complete justice”.
The defining strategy of modern times has been to ignore the Constitution, rather than amend it to introduce change. Amendments to the Constitution can be challenged on the ground that they violate the Basic Structure of the Constitution. Inaction is sometimes invisible and rarely challenged in a court of law. This is what accounts for unconstitutional practices becoming the new normal. One can only contrast this with what is happening in the US, where every executive order of the President is challenged instantly — and often successfully. In contrast, India has seen few such challenges, as the invisible cannot be easily challenged.
It is no wonder that voices for abandoning the doctrine of Basic Structure, citing the supremacy of the “will of the people”, and for abandoning the collegium system of appointing judges, are getting louder, creating an ecosystem or chorus for what would lead to political unaccountability.
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.
The writer is a senior advocate, Supreme Court of India
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