A political question, not a legal one

There’s also the inescapable political context. Governors in Opposition-ruled states have repeatedly stalled legislation, using silence and delay as tools of obstruction. The Tamil Nadu verdict cut through that. It reasserted the rule of law. The Reference now appears to be a political response in constitutional clothing.

In such cases, the Court must be guided by its own restraint. It has previously refused to answer References that were deeply entangled in political disputes as in the Ayodhya demolition reference of 1993. This one deserves the same treatment.

The Court is not bound to entertain this Reference. In fact, it has a constitutional obligation to refuse it — if doing so protects the integrity of its own decisions and upholds the federal compact.

In returning the Reference, the Court could potentially say: ‘Having already interpreted Articles 200 and 201 in State of Tamil Nadu vs Governor of Tamil Nadu, this Court finds no constitutional doubt or legal purpose that would justify an advisory opinion under Article 143. The Reference is accordingly returned unanswered, with liberty to the Union to avail of the review jurisdiction under Article 137, if available.’ That is the line the Court should hold. With clarity, dignity and fidelity to the Constitution.

This case is bigger than the fate of one verdict. It is about who has the last word in our constitutional democracy. The states have spoken — not for themselves alone but for the idea of representative government.

If the Supreme Court allows this Reference to proceed, it risks turning itself into an appeals court against its own authority. That would be a disservice not just to the judgement in question but to the very structure of the Constitution.

Bolt the back door; guard the front. And let the Tamil Nadu judgement stand — not diluted or dodged, but as a declaration of what the Constitution demands: government by laws, not by men.

Views are personal

Sanjay Hegde is a senior advocate in the Supreme Court of India. More of his writing can be read here