In the journey of every nation, there comes a moment where institutions must stand up as solid guardrails to defend what is intrinsic to the foundational values of the nation-state. Because, if the foundational principles are allowed to crumble, the remaining structure will wither away. Further, the institutions which sanction such an obliteration of core ideas, almost always meet the same end. Once the tree falls, the branches cannot survive.
The Supreme Court of India has done just that, while answering the 16th Presidential reference on the powers of Governors and the President of India. The core philosophy of federalism, ingrained in India’s Constitution, lies eroded and buried. The States will gradually become shadow Union Territories with Legislatures but dependent on the dictates of those in power in the central government. Federalism is a vital safeguard in addition to being part of the basic structure of the Constitution. Sounding the death knell for federalism would precipitate the absolute dominion of the Government of India over the remaining institutions that seek to control, regulate and quash arbitrariness and the autocracy of those in power at the Centre.
Equal partners
Under the constitutional scheme, the Union and States are equal partners, with the Government of India being only ‘first among equals’. States are not subservient to the Union Government, nor are they secondary appendages, bound by the diktats of the Government of India. In fact, in all areas in the State list (such as land laws and law and order), they enjoy complete autonomy. Any other understanding of federalism in the Indian context would disrupt and violate the constitutional scheme envisaged by the framers of the Constitution.
If Bills/laws passed by the State Legislature are going to be kept pending by the Governor for months and then returned to the Legislature for ‘reconsideration’, and on reaffirmation by the Legislature then reserved for the assent of the President, it would effectively mow down an ‘elected Legislature’ before the whims of an ‘unelected Governor’. This is the very anti-thesis of democracy.
Editorial | Supreme Court should have upheld timelines for Governors and President
Governors are appointees of the ruling party at the Centre, who, more often than not, act on the whims of those in power in the Government of India and even actively accommodate their political agendas. This is a reality that cannot be ignored or wished away.
Therefore, the scales of federalism and democracy must be weighed between what the Supreme Court calls the “unwritten and undefined powers” of an unelected Governor, acting to serve the political agenda of the Government of India vis-à-vis the mandate of an elected State Government and Assembly reflecting the will of the people of that State. How then can Governors be permitted to overrule the will of the people of the State?
Once the Legislature has passed a law, a timeline on the exercise of the powers by the Governor, under Article 200 of the Constitution of India, has to be read therein to bring it in conformity with the principle of federalism, which is part of the basic structure. This is not just harmonious but also imperative in the current climate of unprecedented administrative excesses. The two-judge Bench in the Tamil Nadu Governor’s case (the decision which led the President to seek an opinion) understood this and prescribed finite and reasonable timelines accordingly.
What the touchstone is
The power of the Governor has to be tested on the touchstone of reasonableness, i.e., a reasonable time to think through and decide on the Legislation. If this timeline is not read, the Governor will become an unelected despot over an elected Government.
Let us not forget that fairness, reasonableness and non-arbitrariness are the threads that run through the veins of our Constitution, and especially Part III which protects citizens against a wayward state. If you anoint unelected Governors or even the President of India as unbridled monarchs over elected governments, the entire edifice of the Constitution will start to crumble.
“Judicial Review” is also a part of the basic structure of the Constitution. No authority, howsoever high it may be, including Parliament, can ever say that its actions will not be tested by judicial review.
The exercise of powers by the Governor or the President of India cannot remain alien to the principle of judicial review. The office of Governor or the President of India is not bigger than Parliament. Even Parliament cannot escape judicial review for its actions. So how can the Governor or the President of India claim immunity from judicial review, especially when they are creations of the same Constitution?
The theory of ‘limited direction’ propounded by the Court goes against the grain of the constitutional scheme, the doctrine of federalism, the doctrine of reasonableness enshrined in Article 14, the doctrine of judicial review and the principles of fairness and justice.
To give such unbridled power to the Governor and the President to keep important pieces of legislation pending for long periods of time, so as to defeat the very purpose thereof, cannot be accepted. This is tantamount to giving Governors a pocket veto and holding States captive to the whims of Governors (and the President) and also keeping States perpetually embroiled in litigation before the courts in order to get a direction for giving assent to every legislation. Ultimately, such an arrangement is constitutionally unsustainable and democratically indefensible.
A weakening of the federal structure
The other problem with the opinion is that it does not take into account the broader context of the series of designed attacks by the Centre on the federal structure in recent times. Here are some examples. First, ,the refusal by the central government to provide compensation to producing States for loss of Goods and Services Tax, thereby effectively disincentivising efficiencies, revenue generation and good governance.
Second, cess collected exclusively by the central government being used as an excuse to deny sharing of its revenue with the States.
Third, refusal by the central government to fully implement the devolutions recommended by the Finance Commission.
Fourth, forcing States to adhere to a ‘one-size-fits-all’ conditions to central schemes and making them conditionally applicable to States only on States agreeing to contribute up to 50% of the schemes budgeted expenditure. This puts unprecedented pressure on their already stressed finances.
Fifth, weaponisation of money in the central kitty by providing financial support as a quid pro quo for advancing the political agenda of the party at the Centre. The recent transfer of ₹10,000 to 1.21 crore women in Bihar very close to the Bihar Assembly election 2025 or the grant of a special financial package for Andhra Pradesh in the last Budget are two recent examples.
Sixth, misuse of the Central Bureau of Investigation/Enforcement Directorate/Income-Tax Department to raid, browbeat, arrest Chief Ministers and Ministers and bring down Opposition governments.
And, finally, to top it all, central control through the Governor’s fiat, which will be the ‘straw that broke the camel’s back as far as federalism is concerned.
If this deep distortion of federalism is permitted to take root, the Union Government will command unrestrained authority while States are reduced to mere administrative outposts. Democracy cannot survive where the will of the people is held hostage to the whims of unelected constitutional functionaries. It is imperative that citizens take notice, institutions reflect, and the Supreme Court reconsiders. Because the preservation of federalism is the preservation of India itself.
Randeep Singh Surjewala is Member of Parliament (Indian National Congress), Rajya Sabha and an Advocate of the Supreme Court of India
Published – November 27, 2025 12:16 am IST
