The author is the Member of Parliament in the Rajya Sabha from the state of Odisha and a practicing Advocate. Opinion is personal and does not represent the views of his political party or any other organization he is associated with. The Co-Author is a Mukherjee Fellow working with Mr. Sujeet Kumar, a Member of Parliament in Rajya Sabha from the state of Odisha.
ODISHA: When the gavel begins to sound like a vote, and the robe starts to resemble a mandate, it is time to pause and reflect on the foundational architecture of our democracy. On April 8, 2025, the Supreme Court of India delivered a judgment in the case of State of Tamil Nadu vs. Governor of Tamil Nadu that has stirred the core of constitutional debate. In a move that shocked constitutional scholars and statesmen alike, the Court directed the President of India to respond to bills reserved by Governors within three months, failing which the bills could be treated as “deemed to have been assented.” It is not the fate of these bills alone that is at stake. The real concern lies in the judiciary’s encroachment into domains constitutionally reserved for the executive. As Vice President Shri Jagdeep Dhankhar Ji, himself a seasoned constitutional expert, aptly remarked, this development reflects a dangerous transformation: the judiciary acting as a “super Parliament,” unaccountable, unelected, and increasingly intrusive in matters far beyond its adjudicative role. At the heart of the controversy is a fundamental misstep: the President of India, a constitutional office vested with defined powers and responsibilities, was neither represented nor heard during the proceedings. In a case that directly affects the functioning, discretion, and constitutional obligations of the Head of State, the absence of any formal representation from Rashtrapati Bhavan reflects a glaring procedural lapse. A constitutional court cannot decide on the scope of presidential powers in absentia, especially when the office in question takes an oath to “preserve, protect, and defend the Constitution.” Due process, even in the name of judicial activism, cannot bypass the dignity of constitutional offices. More concerning is the composition of the bench. The ruling was delivered by a two-judge bench, despite the clear mandate under Article 145(3) of the Constitution, which requires that “a minimum of five judges” sit to decide any case involving the substantial interpretation of the Constitution. This alone should render the judgment a nullity. The Vice President’s intervention on this point was not political posturing, but a principled defence of constitutional procedure, a duty he is sworn to uphold. As an experienced jurist and Chair of the Rajya Sabha, his observations reflect a deeper institutional unease with the Court’s increasingly unilateral assertions of authority. To be clear, the Constitution does not grant, nor imply, a power to the judiciary to compel the President or the executive to act within a judicially prescribed deadline on matters of assent to legislation. Article 201, which governs the President’s role in bills reserved by a Governor, is deliberately silent on time frames. This silence is not an oversight but a design feature, born from the need for consultation, political calibration, and federal sensitivity. When the Supreme Court reads timelines into such silence, it is not interpreting the Constitution, it is rewriting it. That the Governor may have delayed action on state legislation is a fair grievance. But the response cannot be a judicial order mandating the Head of State to act within a fixed period, nor can inaction be equated with assent or refusal unless the Constitution explicitly allows such constructs. The judiciary’s power of review does not extend to supervising the executive’s timing in carrying out its functions. As jurist Soli Sorabjee once said, “Judicial review is a shield, not a sword.” Courts may strike down unconstitutional laws or executive excesses, but they are not empowered to supervise timelines, compel policy, or insert clauses where the Constitution is silent. Even noble ends, such as preventing political misuse of gubernatorial power, cannot justify constitutionally unsound means. Every institution must ask itself whether it has the jurisdiction to discharge a particular role, regardless of the moral weight of its intentions. The judiciary is expected to be the sentinel on the qui vive, not the engine of executive governance. It may prod, it may critique, it may review, but it cannot govern. To preserve the sanctity of the doctrine of separation of powers, constitutional courts must respect institutional boundaries. As Dr. B.R. Ambedkar envisioned, governance is a relay of accountability: the legislature enacts, the executive implements, and the judiciary interprets. When the interpreter becomes the enforcer, the architecture collapses. The Supreme Court’s verdict risks doing just that, by treating judicial review as judicial superintendence, it distorts the balance of powers and introduces paternalism in place of the democratic process. This is not the first time the Supreme Court has crossed into territory constitutionally reserved for the other two branches. The striking down of the National Judicial Appointments Commission (NJAC) in 2015 is perhaps the most consequential example of judicial overreach in recent history. The NJAC was not just another legislation; it was a rare moment of democratic unity, a constitutional amendment passed by an overwhelming majority in both Houses of Parliament and ratified by an unprecedented number of state legislatures. It sought to replace the opaque collegium system with a more broadly based, transparent mechanism for appointing judges to the higher judiciary. Yet, the Supreme Court, sitting in its own cause, invalidated it, declaring that judicial primacy in appointments was part of the “basic structure” of the Constitution. It was a moment when democratic will bent before judicial monopoly. Critics rightly asked: What higher proof of institutional consensus could one offer than near-unanimous legislative backing across party lines? If that, too, could be struck down, what remains of parliamentary sovereignty? The judiciary, in rejecting NJAC, essentially said it could not be trusted with even a whiff of executive presence in judicial appointments. Ironically, this defence of independence has bred a system cloaked in opacity. The collegium system, which continues to operate today, lacks formal criteria, provides no records of deliberation, and is accountable to no one. While the executive must explain itself in Parliament and ministers must defend their decisions, judges appoint judges in secret, with no minutes, no dissent notes, and no obligation to disclose reasons for rejecting or elevating candidates. In the NJAC judgment, Justice J. Chelameswar, the lone dissenter, warned of the dangers of such opacity. He famously called the collegium a “closed-door oligarchy.” His warning has only grown more prescient with time. Today, the judiciary continues to shield its workings from the RTI Act, to resist a formal mechanism for complaints, and to remain the only constitutional pillar without an external accountability framework. Even the declaration of assets by judges, something routinely required of MPs, MLAs, and bureaucrats, remains optional, informal, and nontransparent. This duality, where the judiciary claims maximal autonomy but minimal scrutiny, is precisely what renders judgments like State of Tamil Nadu vs. Governor of Tamil Nadu so disconcerting. When a court that refuses to explain its own decisions begins directing the timelines of elected branches, the imbalance becomes acute. Judicial wisdom cannot replace the will of the majority by infantilising it, nor can the judiciary insist on perfection from the executive while accepting opacity in its own domain. Indeed, judicial disagreement with legislative policy is neither a ground nor proof of unconstitutionality. The Constitution is the only touchstone. Courts can strike down laws that violate rights, but they cannot compel reforms. Matters of governance, reform, and political discretion are constitutionally reserved for the State, which includes only the legislature and executive, not the judiciary. If the President or the Governor errs, political remedies exist: judicial coercion cannot be the first resort. Even the Court’s extraordinary powers under Article 142 must be exercised with caution. In Vishaka vs. State of Rajasthan (1997), the Court crafted temporary guidelines in the absence of legislation. But it stopped short of mandating the legislature to enact a law. It respected Parliament’s domain while filling an urgent vacuum. Contrast that with the April 8 judgment, where a two-judge bench not only interpreted but invented a timeline, declared that delay is justiciable, and warned of “deemed assent”, a term found nowhere in the Constitution. What this effectively does is reduce the constitutional discretion of the President and the Governor to bureaucratic formality, vulnerable to judicial scrutiny. If the Court can dictate the Head of State’s timeline today, will it soon dictate how long the Cabinet can take to table a bill? Or when Parliament must pass legislation on an issue of public concern? A democracy survives not only on the strength of its institutions but also on the maturity of their mutual deference. The Court, in its anxiety to prevent constitutional abuse, must not become the abuser of constitutional balance. As the Vice President rightly observed, “the surest way to degenerate an institution is to grant it immunity from scrutiny.” The judiciary must be scrutinized not to undermine its independence, but to remind it of its constitutional confines. In the final analysis, India’s Constitution is not a judicial manifesto, it is a democratic contract. That contract rests on the belief that each organ knows its limits and respects its role. The Supreme Court is the final interpreter of the Constitution, not its editor. Its power lies in humility, not hubris. And while courts may seek justice, they must remember that justice delivered through overreach is often injustice in disguise. The April 8 verdict is not just about a few state bills or one gubernatorial impasse. It is a constitutional crossroads, one where the judiciary must decide whether it wishes to continue as the guardian of the Constitution or reinvent itself as its master. If it chooses the latter, it will find itself in a lonely and dangerous place, armed with Article 142, but estranged from Article 1: “India, that is Bharat, shall be a Union of States.” A Union held together not by judicial command, but by democratic trust.