Updated: April 26, 2025, 4 PM IST
The delicate balance between the legislature, executive, and judiciary, as envisioned by the Constitution, should not be disrupted by directives issued by one arm of the state to another. Instead, parallel constitutional authorities ought to operate within their respective legal domains.
The ongoing tension between the executive and judiciary, with a divided legislature, has been a recurring theme in India. However, the recent ruling by the Supreme Court of India, which mandates the President to grant or withhold assent to state bills within a three-month timeframe, relying on two Office Memorandums issued by the Ministry of Home Affairs in February 2016, and the subsequent criticism by Vice President Jagdeep Dhankhar, who accused the judiciary of overstepping its bounds with its expansive interpretation of Article 142 of the Constitution, raises serious questions about the proper functioning of our constitutional system.
While the legislative will, whether of Parliament or a state legislature, deserves the utmost respect, it is essential to be mindful of scenarios in which such a will may appear to be a misappropriation of the people’s will, as suggested by the Vice President of India. In fact, the Supreme Court, in a 1996 judgment, exercised caution over the use of powers under Article 142, observing that “the very fact that this power is conferred only upon this Court, and not upon anyone else, is itself an assurance that it will be used with due restraint and circumspection.”
The implications of the Court’s directive require careful consideration in light of the doctrine of separation of powers and the unique constitutional position of the President of India.
Significantly, the Constitution does not specify a timeline within which such assent must be granted or withheld. The practice of the “pocket veto,” while not explicitly stated in the constitutional text, emerges as a byproduct of this silence and serves as an essential constitutional safeguard in rare and exceptional cases.
The apex Court’s reliance on administrative guidelines, specifically internal Office Memorandums meant for executive coordination within the Ministry of Home Affairs, to bind the President of the Republic to a rigid timeline, is constitutionally questionable.
Moreover, the judgment seems to have, albeit indirectly, issued a mandamus to the President of India, encroaching upon a domain that the framers of the Constitution intended to be insulated from judicial directives. The idea that the judiciary may compel the President—a symbol of the sovereignty and unity of the Republic—to act within a prescribed timeframe is antithetical to the very doctrine of separation of powers that forms the foundation of our constitutional structure.
In our parliamentary democratic system, the Constitution envisions the President as the first citizen, Head of State, a constituent part of Parliament, and the recipient of the executive power of the Union, among other roles. Furthermore, the President, as the Head of State, administers the oaths to the Prime Ministers, Council of Ministers, and the Chief Justice of India, symbolizing the continuum among the executive, legislature, and judiciary.
As the eminent constitutional jurist H.M. Seervai cautioned, the President occupies a position of dignity and respect. The powers and duties of the President, while largely nominal in routine matters, acquire profound significance in moments of constitutional crisis or when legislative prudence demands restraint. One cannot forget the instance of former President Giani Zail Singh, who withheld assent to the Indian Post Office (Amendment) Bill, 1986, an Act that, if enacted, would have seriously undermined the citizens’ right to privacy by authorizing the government to intercept postal communications. The exercise of the so-called “pocket veto” in this instance served the cause of constitutional morality and public liberty.
Thus, to judicially prescribe a strict timeline for presidential assent is to strip the office of a critical constitutional function—that of being a conscience-keeper in exceptional legislative scenarios. More troubling is the message such a ruling conveys: that the judiciary must step in to “correct” the potential inaction of the President, thereby implying an inherent lack of trust in the highest office of the Republic. This assumption, with respect, is misplaced and constitutionally narrow-minded. It is indeed disheartening to note that the Supreme Court, while dealing with the office of the President, has considered it appropriate to use expressions such as “this Court is not inhibited in any manner to make a presumption that the President and by extension, the Central Government, may not have acted in good faith…”
It must be emphasized that no arm of the state, be it the legislature, the executive, or the judiciary, should issue directives to another in a manner that disrupts the delicate equilibrium envisioned by the Constitution. If the Speaker of the House or the President of India were to direct the Honourable Judges of the Supreme Court to decide cases in a particular manner, the outrage would be swift and justified. The same standard of restraint must therefore apply in reverse.
In conclusion, it is neither defeatism nor distrust to vest certain discretionary powers in constitutional offices. On the contrary, it is a sign of constitutional maturity to believe that such powers, when exercised judiciously and sparingly, may serve as bulwarks against transient legislative majorities or hasty decision-making. The need of the hour is not to judicially constrain every discretion but to allow parallel constitutional authorities to function within their legal spheres. Friction is not inevitable; and where it does arise, it ought to be resolved through mutual respect and constitutional dialogue—not through binding judicial commands that disturb the very balance the Constitution seeks to preserve.
Let the President be trusted. Let the Constitution be respected. Let restraint, not compulsion, be the hallmark of constitutional governance. Lastly, let us all remember the observation of Justice Robert Jackson of the US Supreme Court that the Supreme Court itself is not final because it is infallible, but it is infallible only because it is final.
Anuj Tiwari is an Advocate-on-Record, Supreme Court of India; Sajjan Kumar is a political analyst and founding director of PRACCIS, a Delhi-based research institution. Views expressed in the above piece are personal and solely those of the authors. They do not necessarily reflect News18’s views.
News opinion Opinion | Trust the President of India and Respect the Constitution
