STATE OF TAMIL NADU VS GOVERNOR OF TAMIL NADU : A CRITICAL REFLECTION

The recent judgment of the Supreme Court in State of Tamil Nadu vs. Governor of Tamil Nadu (Writ Petition (Civil) No. 1239/2023) has sparked public debate—rightly so—on the question of whether a writ of mandamus can be issued to the President of India.

The President is the highest constitutional authority in the Indian polity. While often referred to as a “constitutional head” rather than the “real executive,” this characterization does not diminish the dignity or significance of the office. All major constitutional processes culminate at the President’s desk. Appointments to key constitutional posts, assent to legislation, and the role of Supreme Commander of the armed forces are all vested in the President. Removal from office is only through the rigorous process of impeachment for violation of the Constitution; there is no concept of “misconduct” in the case of the President. Most importantly, Article 361 grants the President complete constitutional immunity—he cannot be summoned by any court, including the Supreme Court.

On the other hand, the Supreme Court of India is one of the most powerful apex courts in the world. It is the guardian of Fundamental Rights and has extensive powers of judicial review over both the Legislature and the Executive. Its orders are enforceable across India under Article 142. Over time, the Court has expanded its jurisdiction, including its ability to review the actions of constitutional authorities. The Supreme Court has held in S. R. Bommai that while the advice tendered by the Council of Ministers to the President is not reviewable, the material basis of such advice is open to scrutiny. Similarly, the Supreme Court has held in Kihoto Hollohan that jurisdictional errors committed by Speakers of legislative bodies have been held justiciable.

The Supreme Court’s ruling in State of Tamil Nadu—that a State Government can challenge the President’s withholding of assent to a bill and pray for a writ of mandamus—raises critical constitutional questions. It appears that the Court has stepped into the exclusive domain of the Executive. Even assuming that such a mandamus is constitutionally permissible, its practical utility remains questionable, as the President enjoys immunity under Article 361. Contempt proceedings cannot be initiated against the President for non-compliance with court orders.

This raises a broader concern about the priorities of the Supreme Court and the High Courts. The primary duty of constitutional courts is the protection of Fundamental Rights and ensuring timely justice for citizens. Unfortunately, this objective is not being adequately met. The Supreme Court’s listing system is archaic and primitive. Cases are listed without fixed dates, leading to endless delays. Litigants are left uncertain about when their matters will be heard. Time appears to hold little value in the current judicial system.

The judiciary’s focus should shift towards delivering faster and more effective justice to the common man and reducing the overwhelming pendency of cases, rather than becoming entangled in matters that fall within the legitimate sphere of the Executive or Legislature.

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