“Federalism on Trial: The 16th Reference”

The recent 16^th presidential reference made by Hon’ble President Droupadi Murmu under Article 143 of the Constitution reignited the debate on the Supreme Court's advisory jurisdiction and its delicate role in Indian federal structure, this reference underscores the tension between the constitutional accountability and autonomy of the high constitutional offices, this moment is not just about legal interpretation this is about how India balances the principles of cooperative federalism and separation of powers at the heart of the democracy.

          Under the constitutional scheme, the union and the states are equal partners, even if in spirit they are coordinate partners. Still, in the law, there is asymmetrical federalism, as the Supreme Court held in the landmark case of S.R. Bommai vs. Union of India, “the States are not mere appendages of the Centre. Their constitutional existence has equal dignity.” The states have substantive autonomy to make laws and decisions in matters concerning the state list (such as land laws and law and order), and anything violating this federal scheme would disrupt the vision and constitutional scheme envisaged by the makers of the Constitution. When we come to the process of state legislation, there is an important key step of obtaining the assent of the governor for the bill to be converted into an act. According to Article 200 of the Constitution, the governor has three options: he can grant or withhold assent, he can return the said bill to the assembly for reconsideration, or he can reserve the bill for consideration by the President. Under the same article, there is no time limit mentioned for the granting of the assent. The delay in granting the assent might disrupt the political agenda of the legislature, and this delay by the unelected body (Governor) appointed at the subjective satisfaction of the Union government mows down the judgment of the elected state legislature, which is completely antithetical to democracy. The Hon’ble Supreme Court didn’t intervene in the matter of prescribing a time limit because of the doctrine of separation of powers, but without those prescribed time limits, the Governor will become an unelected despot over an elected Government, which will indeed undermine the doctrine of separation of powers. This situation is raising questions about whether the governor is acting as an unelected despot on the State Government for the interest of the political agenda of the Union Government, and if it is true, then it is completely violating the federal principle and the doctrine of separation of powers. To check the mala fide intent of the high constitutional offices, the Supreme Court can only exercise limited judicial review, which is answered by the Supreme Court with its advisory jurisdiction to the 16^th presidential reference. Then how are we supposed to maintain an equilibrium within this federal structure?