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Tuesday, May 30, 2023

Constitutional silence and constitutional authorities

Silences in Constitutions have been termed by many experts as “gaps and abeyances”. There will always remain some areas which are either deliberately left unaddressed or inadvertently left so. These gaps in the constitution are called constitutional silence. Constitutional silences are bound to occur, even if constitutions are regarded as exhaustive one, like the Indian Constitution.

Such silences and abeyances give room for pragmatism, ensure accommodation for future ideas and entertain deliberations. Judiciary plays a crucial role in interpreting Silences in the constitution since it is the final interpreter of constitutional provisions. It is the role of the judiciary (primarily the Supreme Court) to fill the gaps and abeyances through its interpretation and at the same time ensuring that it does not result in judicial legislation.

However, in extreme cases where there is a legislative vacuum, the courts have cautiously resorted to law making to a certain extent. While interpreting the constitutional silence the courts have been careful to display an objective sense and not based on the subjective understanding of the judge, in order to reflect both in letter and spirit that the purpose of courts is not to make law but to declare it.

Elimination of silences in the constitution to a larger extent depends on what type of interpretation the courts employ, most prominent among them are purposive (what the purpose of the law was) and liberal interpretation, which is in contrast to strict textual interpretation i.e., going by what the text of the law says. This in turn depends on the circumstances and the facts related to the case as well as the objective behind such laws for which the judicial interpretation is sought.

The founding fathers of the Constitution of India were aware about the need of making a flexible Constitution to cater the needs of the changing times in future. Accordingly, they included Article 368 of the Constitution of India which empowers the parliament to amend the Constitution whenever needed subject to necessary conditions as specified in the said Article. At the same time, the Indian Judiciary has also given a broad interpretation and has extended the scope of the Constitution by including new concepts and suggesting new amendments to the Constitution by applying the “doctrine of progressive interpretation” or “doctrine of living tree.”

The courts have pronounced judgments on the constitutional validity of the decision making by Speakers, Governors and President when the matter landed in the courts but they have not interfered with the process of such decision making in line with the spirit of the constitution which gives functional autonomy to the three branches of the Government: Executive, Legislature and Judiciary.   

The constitution is silent on the time limit within which the Governor of state and Honourable president have to take a decision with respect to the bills referred by the house or the resolution passed by the State Cabinet and Union Cabinet respectively.

Every Bill passed by the State Legislature has to receive the Governor’s assent before it can become a law. The Governor has three alternatives before him with respect to such a Bill:

a. he can give his assent to the Bill; or

b. withholds assent; or

c. he may reserve the Bill for the consideration of the President; or

d. he can return it to the Legislature, if it is not a Money Bill, for reconsideration, suggesting alterations and modifications in part or in the whole. But such Bills when passed again by the Legislature must receive the assent of the Governor, which means that the Governor cannot withhold his assent to a bill if it is passed a second time by the State Legislature (Article 200). However, Article 200 does not specify any time limit for the Governor for either assenting or returning the bill back to the legislature and it merely says the Governor has to act as soon as possible.

Article 161 provides that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. It is on lines with Article 72 conferred upon President of India.

However, there is no specific time limit within which the Governor or President should exercise his decision under the Articles 161 and 72 respectively.

In 2015, Perarivalan a convict in Rajiv Gandhi assassination case filed a petition under Article 161 for remission of his sentence (life imprisonment). The Tamil Nadu Cabinet passed a resolution on September 9, 2018 recommending his release and this was sent to the Governor. Subsequently Perarivalan moved the supreme Court as he did not receive any reply from the Governor. In January, 2021, the Supreme Court was informed that the Governor would take a decision on the petition under Article 161 without further delay. On 25th January, 2021, the Governor decided that the President was the appropriate authority to decide the petition for remission made by the Perarivalan.  

Supreme Court on April 27, 2022 said it was wrong for the Governor of Tamil Nadu to refer the remission plea of Perarivalan to the President despite the state cabinet already having made a recommendation in the case. The Apex Court also observed that the Governor forwarded the recommendation only after the Supreme Court started enquiring about the reasons for the decision was being delayed. Thus, the failure to exercise the power under Article 161 prompted the court to step-in and pass the order of remission which the Governor ought to have done under Article 161.

The immunity to the action taken (or inaction) by the Governors and President under Article 361 is not a bar for the exercise of the powers of the Supreme Court under Article 142. Article 142 of Constitution of India deals with Enforcement of decrees and orders of the Supreme Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing “complete justice” in any case pending before it.

Mockery of Anti-defection Law

The anti-defection law, mentioned under the Tenth Schedule, was added to the Constitution through the Fifty Second Constitution Amendment Act, 1985 (also called Anti Defection Act, 1985). History reveals that the speakers always toed the line of their respective political party leaderships to drag the proceedings in disqualification cases to defeat the very purpose of the law, as the anti-defection law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. 

Article 212 of the Constitution bars the judiciary from interfering with the proceedings of the legislature. The speakers took protection under this article to play the game their political party leadership wanted them to. However, it changed in early 2020 with Thounaojam Shyamkumar Singh’s case (Manipur). A three-judge bench headed by Justice Nariman of the Supreme Court asked the speaker Y. Khemchand to decide the disqualification petitions within four weeks. This was the first time the court had set a time limit for a speaker’s decision.

The bench removed Thounaojam Shyamkumar Singh from the state cabinet and restrained him from entering the Legislative Assembly till further orders. In the Thounaojam Shyamkumar Singh case, the court was forced by the speaker’s deliberate indecision and inaction on the disqualification petitions to invoke Article 142, which allows the Supreme Court to pass any order necessary for doing complete justice in any cause or matter.

The Supreme Court intervened again to set a time limit (April 20, 2021) for the speaker’s decision in the Goa case when the speaker sat over the disqualification petitions for one and half years. In 2021 the Calcutta High Court set a time for the Speaker of the West Bengal Assembly to decide on the disqualification petition against Mukul Roy who, after being elected on a BJP ticket, had defected to the Trinamool Congress.

Speakers of State Assembly sitting over the disqualification petitions or tacitly entertaining defection by the members of the house is not something new and it has been happening for quite a long time. Few years ago, in Telangana we had witnessed a peculiar scenario where several opposition members of the house quit their parties on whose party symbol they contested and won the elections, submitted their resignations to the MLA seats to the speaker of the house, jumped to the ruling party and some of them even became cabinet ministers, whereas their resignation letters were kept in cold storage by the speaker.

In the Thounaojam Shyamkumar Singh case the Supreme Court said, “Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism, to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy.”

The recent judicial interventions have made clear that the constitutional silence on the specific time limit within which the constitutional authorities like Speakers, Governors and President have to exercise their decisions under the constitution does not confer on them a right to defer the decisions indefinitely. On the other hand, they are bound by the constitution to exercise their decisions within a reasonable time but not sit on those decisions indefinitely since that is not as per the spirit of the constitution even though the constitution is silent on the time limit.   

It would be ideal if the parliament makes the necessary constitutional amendments to incorporate specific time limits (particularly for Articles 72,161 and 200) for decision making failing which we can expect quite a number of cases in the future when the Speakers and Governors prolong the decision making wherein judicial intervention may become more frequent, now that there are several precedents for such judicial interventions.

Let us also hope that the parliament will consider the recommendation of the judiciary for the setting up of a Tribunal who may be empowered to handle the cases of disqualification of the elected representatives (impartially and in a time bound manner) when it attracts the provisions of anti-defection law so that the law will get some teeth.

(Major part of the text in the article on constitutional silence has reference to the AP High Court’s judgement dated 3 rd March, 2022 on Amaravati capital city)

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Dr. B.N.V. Parthasarathi
Dr. B.N.V. Parthasarathi
Ex- Senior Banker, Financial and Management Consultant and Visiting faculty at premier B Schools and Universities. Areas of Specialization & Teaching interests - Banking, Finance, Entrepreneurship, Economics, Global Business & Behavioural Sciences. Qualification- M.Com., M.B.A., A.I.I.B.F., PhD. Experience- 25 years of banking and 16 years of teaching, research and consulting. 200 plus national and international publications on various topics like- banking, global trade, economy, public finance, public policy and spirituality. One book in English “In Search of Eternal Truth”, two books in Telugu and 38 short stories 50 articles and 2 novels published in Telugu. Email id: [email protected]


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