SC has failed to address the issue as to how one wing of the state can file a writ petition against the other. No provision in the Constitution allows it

Recently, the Supreme Court of India delivered a judgement in State of Tamil Nadu vs. Governor of Tamil Nadu, wherein the issue was that the governor initially refused to sign or assent to the bills approved by the Tamil Nadu legislative assembly. Later on, the governor referred the bills to the President of India. The President did not assent to the bill, nor did she refer the bill back to the legislative assembly with comments for reconsideration of the bill by the assembly. The non-reference of the bill back to the assembly and not giving assent to the bill became an issue with the government and the governor.

Now, the questions that arise are: is the Supreme Court authorised to admit and hear the matter and give judgement on the subject?; and, is the Supreme Court authorised to entertain a dispute between the legislative assembly and the governor?

Once a bill is introduced and approved by the state legislature, it is referred to the governor of the state for assent under Article 200. On receipt of the approved bill by the state legislature, the governor shall either, as soon as possible, assent to the bill or refer it with his comments back to the legislature for consideration or forward the bill for the consideration of the President.

The article says that if the bill is returned to the legislature with the governor’s observation, the House may or may not consider the observation and again approve the bill and refer it to the governor for his assent for the second time, and he has no option but to give his assent to it. In the case of Tamil Nadu, the governor initially withheld assent and, subsequently, did not return the bill with a message for reconsideration.

On its own, the Tamil Nadu legislative assembly approved the same bill a second time and referred it to the governor. The question is, how long can the governor withhold its assent? The Constitution states, “as soon as possible on presentation”, but remains silent on the specific time point. 

The Constitution itself, in Articles 111 and 200, provides the procedure that needs to be developed in case of conflict between the Parliament and the President, and between the state legislature and the governor. If either the President or the governor refuse to give assent to the approved bill, the first option is to move a no-confidence motion against the President in Parliament and against the governor in the legislature on the ground that both have failed to follow the advice tendered by the council of ministers. The second option requires the Parliament or the state legislature to reconsider the bill, and if approved again, the President or the governor has no option but to assent to it.

This constitutional convention, or constitutional morality, introduced and developed by the Tamil Nadu legislature, is not examined in the judgement as to the constitutional validity of the convention or morality. The question raised by the President under Article 143 to the SC concerns the duration for which the he/she can withhold a bill. In this case, the SC, instead of serving as a court of guidance and helping to create constitutional conventions and morality, has imposed itself as a superhero and the boss of the nation. 

The Constitution lays down in Article 246 the subjects on which the Parliament and the state legislature can legislate. In the case of a subject mentioned in the concurrent list, both the state legislature and Parliament can legislate. But in case of conflict between the act of state legislation and the act of Parliament, under article 251, the act of Parliament will prevail. Under Article 201, once the bill is referred to the President for consideration, he/she has to act upon it as soon as possible, as per the provisions of the Constitution. 

From the judgement, the SC has not considered the issue of jurisdiction. This is the main issue. Under Article 145 of the Constitution, the SC is authorised to frame rules and regulations for carrying out its work. Similarly, the Constitution, under Articles 118 and 208, has empowered the Parliament and the state legislature to frame the rules for the conduct of their businesses in the House. Under Articles 122 and 212 of the Constitution, the proceedings of the House cannot be called for in court, nor can the proceedings of Parliament or legislation be questioned in court. 

The Supreme Court’s original jurisdiction is limited by Articles 32 and 131 to disputes involving the infringement of fundamental rights and disputes between states and unions, or between multiple states and unions, or between one state and another. But can the President’s or governor’s non-assenting of a bill be called a dispute between the state and the union? The controversy involves the speaker, who represents the legislature, and the governor. Even this aspect is not examined by the SC. 

Now the question is can the SC compel either the President or the governor to give their assent to the bill under Article 200, given Article 361? As mentioned earlier, the court has no jurisdiction. 

Any order or judgement issued by any court is null and void if it is without jurisdiction. 

Lastly, the SC lost an opportunity to examine whether, having reserved the bill for the President's reference, the President and the governor become one and the same identity. Article 12 defines “State” to include, in the case of the Union govt, the govt and the Parliament, and in the case of state, the govt and the legislature . The question that I have raised needs clarification, as the governor remains in office till he enjoys the confidence of the President.

When the bill is referred to the President, the governor hands over the jurisdiction to the President. Are we to then treat only the referred bill, with both the offices as one, in view of the judgement mentioned herein? What has been overlooked is that the “State” in the case of the Union govt includes the Parliament; the same situation prevails for states. Article 12 suggests that the Parliament, the government, and the office of the President form a unified entity, similar to the situation in the states.

The judgement under examination is filed by “The State of TN Against Governor of Tamil Nadu”. According to Article 12, the term 'state' includes the govt of TN, which encompasses the TN governor within the concept of the state. The Apex court has failed to address the issue as to how one wing of the state can file a writ petition against the other. No provision in the Constitution allows one wing of the state to file a petition against another wing of the state. On these grounds, I differ from the judgement.