The appointment of Justice B.R. Gavai as the 51st Chief Justice of India comes at a particularly sensitive and complex moment for India’s constitutional institutions. He steps into office amid a brewing debate over the balance of power between the judiciary and the executive, now intensified by a rare Presidential reference under Article 143 of the Constitution. This move underscores a growing friction between the two branches over constitutional interpretation, separation of powers, and the justiciability of discretionary powers held by constitutional authorities like Governors and the President.
The Context: Tamil Nadu Governor Case & Supreme Court’s Ruling
At the heart of the current constitutional moment is the Supreme Court’s April 12 ruling, in which a two-judge bench directed the President of India to decide within three months on Bills sent to her after being reserved by the Governor under Article 200. This was a significant assertion of judicial oversight over executive functions and was widely criticized by members of the Executive, including the Vice President, who called it "judicial overreach."
This led President Droupadi Murmu to invoke Article 143—a rarely used provision that allows the President to seek the Supreme Court’s opinion on matters of public importance. She has posed 14 detailed constitutional questions, essentially challenging the Court’s authority to set procedural timelines for constitutional functionaries when the Constitution itself does not explicitly do so.
Key Constitutional Tensions Highlighted by the 14 Questions
Justice Gavai’s first and major task will be to constitute a Constitution Bench to deliberate and provide an authoritative response to these questions. Here's a breakdown of what’s at stake:
1. Role and Discretion of the Governor (Questions 1–5):
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The Governor's discretion under Article 200 in giving assent, withholding it, or reserving a Bill for the President's consideration is being questioned: Is it bound by the Council of Ministers’ advice?
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The justiciability of these discretionary powers is under scrutiny—can courts review how and when a Governor acts?
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Crucially, can the judiciary impose timelines for these decisions when the Constitution is silent?
2. Presidential Discretion and Judicial Oversight (Questions 6–9):
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Article 201, which empowers the President to assent to or withhold Bills referred by the Governor, is now at the center of debate.
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The President asks whether these powers too are justiciable, and whether courts can prescribe a manner or deadline for exercising this discretion.
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The larger issue is whether the Supreme Court’s intervention in such matters is consistent with the principle of separation of powers.
3. Use of Article 142 (Questions 10 & 13):
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Article 142 gives the Supreme Court sweeping authority to “do complete justice,” but the Executive now seeks clarity on its limits.
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Can the Court use Article 142 to override constitutional procedures or substitute its own timeline for that of constitutional functionaries?
4. Legislative Authority and Assent (Question 11):
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Without the Governor's assent, is a Bill passed by the legislature a law? This has critical implications for the validity of laws passed and pending approval.
5. Procedure for Constitutional Bench Formation (Question 12):
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Raises a procedural query: Must all cases involving substantial constitutional questions be compulsorily referred to a Constitution Bench?
6. Federal Dispute Resolution (Question 14):
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Questions whether Article 131, which deals with inter-governmental disputes, is the only constitutional route to resolve conflicts between the Union and States—or if the Court can use other jurisdictions.
Implications for Chief Justice Gavai and the Judiciary
Justice Gavai now finds himself at the helm of the judiciary at a moment where he must:
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Uphold the integrity and independence of the Supreme Court, while ensuring the institution does not appear to encroach on executive territory.
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Balance constitutional text with evolving democratic practice—especially around the functioning of State Governors, many of whom have been accused of delaying or obstructing legislative processes.
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Ensure the judiciary's extraordinary powers under Article 142 are clarified and circumscribed, preventing future allegations of overreach.
This is not merely a legal test but also a constitutional crisis of interpretation, federalism, and institutional propriety. The Constitution Bench's response will likely set enduring precedents on:
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Judicial limits on executive discretion
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Interpretation of "reasonable timelines" where none are specified
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Reinforcement or recalibration of Article 142
Conclusion
Justice Gavai’s tenure begins with an issue that sits at the intersection of constitutional law and institutional legitimacy. The outcome of this reference will shape Centre-State relations, the role of Governors, and the scope of judicial activism for years to come. It is not merely a legal advisory—it is a defining moment in India’s constitutional evolution.
