Upholding Constitutionalism and Restoring Constitutional Order

The recent judgment of the Supreme Court in State of T.N. v. Governor of T.N.¹ regarding assent to Bills which is hailed as historic has also drawn sharp reactions and generated a lot of debate. In this scenario certain fundamentals need to be remembered and kept in view so that the focus is not lost.

The Constitution has adopted the Cabinet form of representative democratic Government tersely described as based on the “Westminster model” where the King reigns but does not rule, the real power being vested in the Council of Ministers on whose aid and advice he is to act. “He can do nothing contrary to their advice, nor can he do anything without their advice.” The constitutional position of the President/Governors in India is the same. It is now well-established that the position of the President is akin to that of the constitutional monarch in Britain. It is settled and clear that they have to exercise their powers and discharge their functions on the basis of ministerial advice by which they are generally bound except where it is otherwise prescribed constitutionally or in exceptional cases which by their very nature are not amenable to ministerial advice. Articles 74², 75³, 77⁴ and 78⁵ with regard to the Union & Articles 163⁶, 164⁷, 166⁸ and 167⁹ concerning the States capture and embody the essence and nuances of the parliamentary system which the Constitution has adopted. These articles are all pervasive and do not make any distinction between one function and another. That the President and Governors have to exercise their powers in accordance with ministerial advice holds good even in the matter of assent to Bills. Real power vests in the Council of Ministers headed by the Prime Minister/Chief Minister; the President/Governor is only the ceremonial Head of State. The Constituent Assembly Debates and the judgments underscore this position.

The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Article 163(2), for, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that the President/Governor has general discretionary power to act against ministerial advice. The area of discretion is clearly defined and confined. Article 200¹⁰ is not in the domain of discretion.

The basic major premise of our Constitution is that what obtains is limited Government. It may be said that the concepts of limited Government and judicial review constitute the essence of our constitutional system as Durga Das Basu points out and it involves three main elements: (i) a written Constitution setting up and limiting the various organs of Government; (ii) the Constitution functioning as a superior law or standard by which the conduct of all organs of the Government is to be judged; and (iii) a sanction by means of which any violation of the superior law by any of the organs of the Government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is “judicial review”.

The judiciary is constituted as the guardian of the Constitution and the arbiter of the functions of all organs and the limits of their powers as grantees under the Constitution. To the judiciary is committed the function and responsibility of interpreting the Constitution. The purpose of public law is to discipline the exercise of power. Judicial review is the means of achieving that objective. Constitutionalism is limited Government under a fundamental law. Judicial review is an incident of and flows from the concept of the Constitution being the fundamental higher law.

“Judicial review has developed to the point where it is possible to say that no power—whether statutory or under the prerogative — is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. Even when discretionary powers are engaged they are not immune from judicial review.” (De Smith’s Judicial Review) “No power is inherently unreviewable and in a constitutional democracy wedded to the rule of law, unfettered and unreviewable discretion is a contradiction in terms.” (Wade & Forsyth’s Administrative Law) All this has been quoted with approval by the Supreme Court. (cf, inter alia, B.P. Singhal v. Union of India¹¹) This is the position even in England without a written Constitution and bill of rights. The position is all the more reinforced in India. Judicial review is enshrined in our Constitution.

It is in the backdrop of such fundamental settled position that we must analyse and appreciate the judgment, also noting and keeping in view the earlier judgments and development of the law.

The Supreme Court declared the law in Samsher Singh v. State of Punjab¹². We have no doubt that De Smith’s statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional….” The only sequitur is that refusal of assent is justiciable. This is because refusal of assent would be unconstitutional means that such refusal can be judicially scrutinised and so declared by the Court. In the light of this unequivocal enunciation of the constitutional position the President or the Governor cannot decline to assent to a legislation validly passed and if he does so, such action is justiciable and can be declared unconstitutional and he be compelled to grant assent.

The passing observation in some earlier judgments that assent is not justiciable is not really the ratio. The question did not directly arise and was not put in issue and decided in those cases. There is no discussion to reach such a conclusion and those casual observations are really obiter. A proper and closer reading of the judgments will indicate that the position is otherwise.

In Purushothaman Nambudiri v. State of Kerala¹³, the Court only observed that the Constitution does not impose any time-limit within which the Governor should make any of the declarations (and similarly in the case of the President also)¹⁴ The issue was whether a Bill lapses with the prorogation or dissolution of the House. All this was over 60 years ago.

In Hoechst Pharmaceuticals Ltd. v. State of Bihar¹⁵ again the contention was that the law was relatable to a subject in the State List and there was no necessity or occasion for the Governor to have referred the Bill to the President for his assent. It was held in that context that the assent of the President is not justiciable and “no infirmity arising out of his decision to give such assent could be spelled out”. These last words contain the key to the decision and indicate that in the circumstances there was no infirmity in giving assent. It would thus be possible to examine if there is any infirmity and decide the matter which indeed is justiciability of assent.

In Bharat Sevashram Sangh v. State of Gujarat¹⁶, there is only an incidental observation following and quoting Hoechst Pharmaceuticals Ltd. case¹⁷ that assent is not justiciable. The question did not at all arise.

These decisions do not detract from the tenability and appropriateness of the earlier discussion. The judgment in Samsher Singh case¹⁸ (in 1974 by a 7-Judge Bench) has not been noticed in Hoechst Pharmaceuticals Ltd. case¹⁹ (in 1983 by 3 Judges) or in Bharat Sevashram case²⁰ (in 1986 by 2 Judges) in which cases it has been casually observed that assent is not justiciable. In any event the later judgment in M.P. Special Police Establishment v. State of M.P.²¹ (by a 5-Judge Bench) should clinch the issue.

Some recent decisions of the Supreme Court have been more heartening. In State of Telangana v. Governor of Telangana²², the Supreme Court while leaving the question of law open at that stage, observed that the expression “as soon as possible” in the proviso to Article 200 has a significant constitutional content and must be borne in mind by constitutional authorities, emphasising that in case a Governor withholds assent to a Bill, he has to mandatorily return the Bill to the legislature expeditiously together with a message for reconsideration.

In State of Punjab v. Governor of Punjab²³, a 3-Judge Bench considered the matter in greater detail and comprehensively enunciated the legal position:

In a parliamentary form of democracy real power vests in the elected representatives of the people. The manner in which the role of the Governor as a symbolic Head of State is performed is vital to safeguard the basic feature of federalism. The language of Article 200 that the Governor “shall declare”: (i) either that he assents to the Bill; or (ii) that he withholds assents therefrom; or (iii) that he reserves the Bill for the consideration of the President implies that the Governor is required to declare the exercise of his powers. The first proviso to Article 200 attaches to the second option — withholding of assent and stipulates that the Governor may “as soon as possible” return the Bill. The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage.

The concluding part of the first proviso however stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase “shall not withhold assent therefrom” is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor shall not withhold assent. The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State Legislature. This is compatible with the fundamental tenet of a parliamentary form of Government where the power to enact legislation is entrusted to the elected representatives of the people. The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation which squarely lies in the domain of the State Legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.

Otherwise, the Governor, the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature. The Governor’s constitutional powers cannot be used to thwart the normal course of lawmaking by the State Legislatures. That would be contrary to fundamental principles of a constitutional democracy based on a parliamentary pattern of governance.

The law has been carried further in State of T.N. case²⁴. State of Punjab case²⁵ has been reiterated and followed. The first proviso to Article 200 relates to withholding assent and in case the Governor opts to withhold assent he is under an obligation to follow the procedure laid down therein “as soon as possible”. It was enunciated:

The words “shall declare” in the substantive part of Article 200 leave no scope for inaction. Neither pocket veto nor absolute veto finds a place in the scheme and mechanism envisaged under Article 200 which is characterised by the movement of the Bill from one constitutional authority to another with a sense of expediency. The Governor can neither sit on the Bills and exercise “pocket veto” nor declare a simplicitor withholding of assent. As a general rule the Governor cannot reserve a Bill for the consideration of the President once it is presented to him in the second round after the legislature considers his message and again passes the Bill except when the Bill presented in the second round is materially different from the one presented first.

The President too while exercising power under Article 201²⁶ is subject to the same constitutional limitations. The words “shall declare” in Article 201 make it mandatory for the President to act; there is no pocket veto or absolute veto available to the President also. The proviso to Article 201 attaches to the option of withholding assent as in Article 200. The President has to furnish reasons for withholding assent. A lack of reasons or even insufficiency thereof may do violence to the concept of “limited Government” on which the edifice of our Constitution has been built. The whys and wherefores of the President’s actions provide a basis for judicial review and allow the courts to assess the validity of the decision as well as ensure accountability between the three pillars of Government which is in consonance with the idea of checks and balances in the constitutional set-up of our country.

While no express time-limit is prescribed for the discharge of functions under Article 200 or Article 201, it is settled that every power must be exercised within a reasonable time and the courts are well empowered to prescribe a time-limit for the discharge of a function or exercise of a power which by its very nature demands expediency. The Court accordingly laid down certain timelines regarding exercise of power under Articles 200 and 201, not to fundamentally change the procedure and mechanism stipulated by these provisions but only to lay down a determinable judicial standard for ascertaining the reasonableness of the exercise of power. This cannot be faulted.

The Court held that the power of judicial review in a written constitution is implicit, unless expressly excluded by a provision of the Constitution. The determining factor in deciding whether a power would be subject to judicial review is the subject-matter of such power and not its source. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of Bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards. The different situations and circumstances where the action of the Governor/President under Articles 200/201 is justiciable have been clearly delineated and the grounds of judicial review stated.

It is well-settled that unfettered and unreviewable discretion or power is anathema to the Constitution. The myth about non-justiciability has been finally and expressly exploded with the Supreme Court declaring that withholding of assent or reservation of Bills for the President’s consideration is justiciable.

Further, it is not correct to talk of powers. Every constitutional authority has functions to perform, duties to discharge. It is gladdening that the Court observed: constitutional authorities are creatures of the Constitution and are bound by the limitations prescribed by it. No authority, in exercise of its powers, or to put it precisely, in discharge of its duties, must attempt to breach the constitutional firewall.

The view taken in B.K. Pavitra v. Union of India²⁷ has been rightly declared to be per incuriam to the extent it observed that the Constitution confers discretion upon the Governor insofar as the reservation of Bills for the consideration of the President is concerned and that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny.

It is wholly misconceived and jejune to see or talk about the present judgment as a victory for one or the other — the Chief Minister or the State Government — and a setback to the Governor. It is important that we recognise this not as anyone’s personal victory. It is a triumph for constitutionalism and the rule of law.

Objections are raised that the office/position of the President is exalted, no time-frame can be fixed for his actions, no directions can be issued to him, that the Court must respect the other co-equal wings and abide by the principle of separation of powers, that no words can be added to the Constitution and Article 142²⁸ could not have been invoked and that provision is being misused drastically. These protestations are uniform and will not stand a closer look.

One non-negotiable maxim is: Be you ever so high, the law is above you. The President is, undoubtedly, a very exalted office. He/she is the Head of State. The judgment has not shown any disrespect to, or lowered the dignity of, that position. The Constitution has vested in the Court the power of judicial review and invested it with the function of constitutional interpretation and the responsibility of upholding constitutional values and enforcing constitutional limitations.

It is equally erroneous to view this as judicial overreach or amending the Constitution. It is pure and simple constitutional enunciation for which purpose the Court exists. This is in keeping with the constitutional ethos. It is the constitutional position that prevails in other jurisdictions as well, many of which have been referred to in the judgment²⁹. Even in a monarchy (now constitutional) — UK there has been no veto to a Bill since 1707 during the reign of Queen Anne. Hood Phillips observes that to refuse assent would now be unconstitutional.

The Constitution envisages that Bills duly passed by the competent legislature are promptly assented and become Acts. That is just what the judgment has sought to ensure. All public power, including constitutional power, has to be exercised reasonably and for public good. It is never exercisable arbitrarily or mala fide. The Constitution does not conceive of two parallel centres of power: the elected Government and the unelected Head of State. Such parallel power centres would ensure not constitutional order, but chaos. Legislation is the expression of the will of the ultimate sovereign, the people expressed through their elected representatives, the legislatures. When a Bill duly passed by the legislature is not promptly assented it will mean that the will of the people is neutralised and the policies and programmes of a democratically elected Government are put on hold. That would be harmful to democracy and federalism and the larger public good and effectually make a mockery of the Constitution and constitutionalism. It is in that background that the Court has expounded the law and it is in that light the judgment is to be seen and understood.

It is now well-settled that every State action has to be reasonable. The reasonable exercise of power inheres its exercise within a reasonable time. Where no time-limit is fixed for the exercise of power, it has to be exercised within a time that can be held to be reasonable. This is all that the Court has done in fixing timelines for action under Articles 200 and 201. It is to be noted that the timelines have been laid down taking into consideration the recommendations of the Sarkaria and Punchhi Commissions as also guidelines issued by the Union Home Ministry in this behalf. They are fixed more as a yardstick for the Court to determine in judicial review whether the action/exercise of power is reasonable, as is clear from the judgment. It is not an amendment to the Constitution. No words are added to the constitutional text of Articles 111³⁰, 200 and 201. The judgment has only given effect to the will of the legislature. In doing so it has indeed respected the co-equal wing — the legislature and the democratic principle. Also, the judgment has not at all said that there would be deemed assent if the timelines are breached or for any other reason. (see paras 237 to 241) These observations are unmistakable:

239. Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers. …. The reason why these timelines do not immolate the very fabric of Article 200 is because the said provision even with the infusion of these time-limit still remains markedly different from its counterpart provisions where such time-limits are legislatively prescribed. For instance, Article 75³¹ of the Constitution of the Islamic Republic of Pakistan or Article I Section 7 of the US Constitution³², where if no decision is taken within the stipulated time-limit by the President then the Bills are deemed to have been assented to.³³

It is to be remembered that every interpretation is in its context. “In law context is everything.” There is an underlying principle and purpose behind constitutional provisions. The constitutional underpinning in this case is that in a democracy a Bill which is passed by the legislature cannot be stifled or rendered nugatory. The question of its constitutionality or otherwise is for the courts once it becomes a law after assent is given. What the Court has done in this case is only imbuing the gaps and silences in the Constitution with substantive content by infusing them with a meaning which enhances the rule of law and promotes a constitutional culture.

It is only in the present case in its very special, shall we say, bizarre circumstances and the Governor’s conduct (despite the law laid down) which the Court found “as it clearly appears from the events that have transpired even during the course of the present litigation has been lacking in bona fides” that the Court in exercise of powers under Article 142 declared that the Bills are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered. In any event Article 200 expressly mandates that he shall assent when the Bills are reconsidered and passed by the legislature and again presented to him.

The concluding words of the first proviso to Article 200 emphatically lay down that the Governor shall not withhold assent. Thus, the Governor has no other option in that circumstance. He cannot then reserve it for the consideration of the President. The law having been clearly laid down, and that flows from Article 200, that the Governor cannot reserve a Bill for the President’s consideration after it has been reconsidered and passed by the legislature and presented to him again and the only course of action open to him is to assent. In the factual context of the present case, the Bills having been presented to him the second time after they were passed by the House, the assent of the Governor was a mere formality and deemed assent inevitably follows in such case. It is against this background the Court held there was deemed assent. The only sequitur in the context was deemed assent. Recourse to Article 142 was not really necessary. Even without recourse to Article 142, the same result would follow — the Bills would be deemed to have been assented. This can invite no criticism.

However, Article 142 is a special provision vesting special, extraordinary power in the Court. The purposed constitutional plenitude of the powers of the Supreme Court to ensure due and proper administration of justice is intended to be coextensive in each case with the needs of justice and to meet any exigency. Giving effect to the will of the people is paramount in a democracy: that is enacting a Bill into law by according assent. That is complete justice in the case; what else can one think of. The Court did only that.

The doctrine of separation of powers or its breach does not at all arise in the case. The judiciary has not encroached upon the domain of the legislature or the executive. It has only interpreted and given effect to the Constitution’s provisions. That is the Court’s primary job: if it had failed to do what it did, that would have been an abdication of its functions and a dereliction of its duties.

It is also unfortunate and misguided that the judgment is seen as giving directions to the President and objections are raised in some quarters. The constitutional position is settled that the President is only a ceremonial, titular head. He is a metaphor for the Union Council of Ministers. Further a variety of Presidential powers and functions have been the subject of judicial review over the years: Actions under Article 356³⁴ — imposition of President’s rule, proclamations under Article 356 have been held to be unconstitutional; Article 156³⁵ — pleasure doctrine removal of Governors, withdrawal of President’s pleasure was held to be open to judicial review; Articles 72³⁶ and 161³⁷ — power of pardon, impugned orders have been held as unsustainable and set aside. These are some areas where the Court has scrutinised the actions of the President or the Governor and issued directions. Therefore, any direction to grant assent is clearly permissible and legitimate.

Judicial review is constitutionally entrenched in India and it is well-recognised that the range of judicial review exercised by the superior judiciary in India is perhaps the widest and the most extensive known to the world of law. It is significant to note that even in UK where the concept of parliamentary supremacy exists and judicial review is to that extent limited, the UK Supreme Court in R. (Miller) v. Prime Minister³⁸ ruled that the royal prerogative of prorogation of Parliament was amenable to judicial review and the impugned prorogation was held to be unlawful and it was declared that there was no prorogation. It is also not correct to say that the Court has followed other Constitutions. They have been referred to only for analogy and pointing out differences and to show that the principle or idea has inhabited other minds in other jurisdictions too.

The debate seems to be more political than legal or constitutional. The judgment does not lay itself open to criticism as being constitutionally infirm. Rather it is a welcome development: a boost to constitutionalism and the rule of law, the democratic ethos and federalism.

This writer has been advocating that there should be appropriate Constitution amendments prescribing a time-frame for action under Articles 111, 200 and 201; and further if no action is taken within that time-frame there shall be deemed assent as in the US Constitution. The question is who will bell the cat?

It is submitted that the latest judgments — State of Punjab case³⁹ and State of T.N. case⁴⁰ have, for the first time, expounded the correct constitutional position regarding assent by the Head of State to Bills duly passed by the legislature. They have taken the law forward in the right direction. They have struck a blow for constitutionalism and restored constitutional order. It is gratifying that the views of this writer expressed in various writings and lectures over the years regarding assent to Bills — that there is no discretion in the Head of State in that behalf and that withholding assent is justiciable — have been substantially endorsed in these decisions.

Having said all this, the judgments are not without their problems and flaws. Some criticism is warranted not for taking the law further, but for some imprecise propositions loosely worded and against the settled legal position and which can have the potential of opening the Pandora’s box and making the legal landscape dismal and cloudy.

As stated, in our constitutional scheme of a parliamentary democracy, the foundational premise is that the President/Governor is to act on the aid and advice of the Council of Ministers. The exceptions to this are provided in the Constitution itself or by constitutional conventions like appointment of Prime Minister/Chief Minister, dismissal of a Ministry that has lost the confidence of the legislature but refuses to resign, dissolution of the House when the Ministry has lost the confidence, invoking Article 356, or those that have been judicially carved out because of the very nature of the case not being amenable to ministerial advice. It has been clearly and consistently laid down earlier that Article 200 does not belong to such exceptions. It belongs to the species of power where the Governor is bound to act on the aid and advice of the Council of Ministers. (See, inter alia, State of Gujarat v. R.A. Mehta⁴¹, para 35) Therefore, the observation “that M.P. Special Police Establishment case⁴² was a step forward from the general rule laid down by the larger Bench in Samsher Singh case⁴³ only allowing for a very limited scope of discretion for the Governor in certain exceptional situations like ‘peril to democracy or democratic principles’, and that accordingly the Governor would be duty bound to give careful deference to the aid and advice of the State Council of Ministers and only in the limited of exceptional circumstances may he deviate from such advice tendered to him” cannot be said to represent the correct law. It is not that the Governor is to give careful deference to the aid and advice of the Council of Ministers, that aid and advice is binding on him. These statements are too broad and imprecise, and indeed per incuriam. M.P. Special Police Establishment case⁴⁴ was a case of sanction for prosecuting a Minister; Nabam Rebia, concerning summoning of the legislature. Those cases did not concern Article 200 and assent. To hold that a Governor need not act as per the advice of the Council of Ministers and can withhold assent for such reasons as “peril to democracy or democratic principles” will give unguided powers to the Governor lending itself to abuse. This was never envisaged by the Constitution and its founders or the consistent line of earlier decisions. This is not a cause for celebration by the States, but for serious concern. It may, however, be right to say that the tone and tenor of the entire judgment is to give effect to the democratic underpinnings and the will of the elected representatives. Can it, therefore, be said that these statements have come unwittingly? That is a little difficult. Otherwise, this cannot be said to lay down the correct law, though it does not affect the final decision.

There is another slippery area. It has been held that the first proviso to Article 200 attaches to the option of withholding assent and in case the Governor opts to withhold assent he is under an obligation to follow the procedure laid down therein “as soon as possible”, that is, return the Bill to the legislature. But earlier cases have held, and that flows from the plain meaning of withholding, that in case he withholds assent the Bill falls through unless the procedure indicated in the first proviso is followed. A Bill that has lapsed or died cannot be sent back to the legislature for reconsideration. The correct position is that the Governor acts under Article 200 — whether in granting assent, withholding assent or returning the Bill to the legislature or reserving it for the President’s consideration — on the aid and advice of the Council of Ministers except where the second proviso is attracted. The real purport of the provision is that if the Governor is not inclined to grant assent because he entertains any doubt or for whatever reason, then he has to necessarily act under the first proviso and return the Bill to the legislature for reconsideration. This, it is submitted, would be the correct understanding and enunciation of the position. It is not that the assent is withheld and the Bill returned.

While the issue of refusal to assent or reservation of a Bill for the consideration of the President has been rightly held to be justiciable, it is a little difficult to appreciate how the challenge can be entertained directly in the Supreme Court as it is not a case of violation of fundamental rights; and Article 32⁴⁵ under which provision one can approach the Supreme Court directly can be invoked for protection of fundamental rights. The grounds of challenge to withholding assent or reserving a Bill for the consideration of the President as set out in the judgment are alien to a challenge re: infringement or protection of fundamental rights. But such petitions are now entertained under Article 32.

It may, perhaps, have been better if this judgment was by a Constitution Bench. But this Bench has not laid down anything very new or different. It has not really expounded the law; it has only applied and amplified and taken the law further. This is indeed welcome: A Constitution Bench sitting would have taken a much longer time. It is not inapposite to make another comment: the judgment is not characterised by brevity. While it is comprehensive, it is very lengthy, running to over 400 pages and tiring, one tends to lose the focus. And that may, perhaps, be the reason for imprecise or untenable statements of the law. Justice Krishna Iyer had captured the essence of all this in about 30 pages in Samsher Singh case⁴⁶ and in one pithy sentence that “refusal of assent would be unconstitutional” established that assent, or rather its refusal, is justiciable. We must, of course, bear in mind the sage advice of the Law Commission that conciseness should not come at the cost of completeness and that the stress on brief judgments should not provide a cover for mental lethargy or an alibi for intellectual dishonesty. The need is to strike the right balance.

Even so, the present judgment has once again demonstrated that Judges tend the gate between order and anarchy. The contribution of the Supreme Court in upholding the Constitution and promoting constitutionalism has been quite impressive. What was said about the American Supreme Court by Chief Justice Charles Evans Hughes, “The Republic endures and this is the symbol of our faith” truly applies to our Supreme Court as well.

The memorable words of one of the Framers of the American Constitution, James Madison in The Federalist come home with a strange poignancy, “If men were angels, no Government would be necessary. If angels were to govern men, neither external nor internal controls on Government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the Government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the Government; but experience has taught mankind the necessity of auxiliary precautions.” Judicial review and legal control is one such auxiliary precaution.

The reality is that the Constitution contains a mélange of powers. No single institution or branch of Government is even remotely supreme. Any talk about supremacy of any wing is totally puerile. Some tension and struggle occasionally arise. Reciprocal influence is a continuing process. All of us and especially those in high positions should always remember the profound truth that giving effect to the Constitutional provisions is a solemn exultation of the Constitution and that it is the Constitution that protects all in weather fair and foul.