Legislative Stasis and Constitutional Silence — In Defence of Article 200’s Judicial Remedy – Constitutional Law and Philosophy

[This is a guest post by Tanmay Durani.]

Introduction

The Supreme Court’s recent judgment, concerning the interpretation of Article 200 of the Indian Constitution, mandating time-bound gubernatorial action on state bills, has ignited claims of judicial overreach, with critics alleging that prescribing timelines for Governors exceeds textual mandates of the constitution and disrupts executive autonomy. I aim to defend the judgment as a principled application of India’s constitutional interpretive tradition, which harmonizes textual ambiguity with structural imperatives. First, I advance a tripartite criterion—tested in this piece through Justice K.S. Puttaswamy v. Union of India (2017)—to address indeterminacy in constitutional provisions and resolve constitutional silences: (1) textual vagueness in open-ended provisions, (2) normative conflicts imperilling foundational values, and (3) the absence of textual contradiction. This framework operates through Lee’s framework of interpreting Constitutional Silences through a C1-C2 axis: C1 (legal corpus), rooted in constitutional text and precedent, and C2 (normative framework), anchored in broader constitutional values like separation of powers, democratic ethos, and systemic coherence.

Second, building on the aforementioned synthesis of the three-part criterion and the C1-C2 framework, I shall try to establish that the Tamil Nadu Governor judgment is constitutionally sound, and far from rewriting the Constitution, the judgment safeguards against executive obstructionism by reinforcing the structural logic of India’s parliamentary democracy. The Court’s reasoning mirrors the interpretive methodology used for filling constitutional silences – which is a part of the Indian constitutional tradition.

The Limits of Textualism: Grounding Judicial Construction in Constitutional Morality

Constitutional interpretation, as a legal exercise, has evolved significantly over time, particularly in jurisdictions with dynamic judicial frameworks like India. Central to this evolution is the tension between textualism and the need for judicial innovation. Textualists maintain that courts must adhere strictly to the language of the Constitution, reading its provisions as they are written and interpreting constitutional silences as intentional. In this view, when the Constitution omits a specific right or detail, the silence must be understood as deferring to the political branches rather than permitting judicial intervention.

However, the rigid textualist approach often proves inadequate—particularly in instances where constitutional provisions are open-textured, or where their application demands adaptive interpretation. It is in such contexts that the notion of constitutional silence arises. Faced with these silences, courts encounter a dual risk: the danger of judicial overreach on one hand, and legislative inaction on the other. There is, therefore, a pressing need for a principled and replicable method that can navigate this tension while preserving constitutional fidelity. The set of criteria I propose—textual vagueness, normative conflict, and absence of contradiction—aims to strike this balance. It draws from Indian jurisprudence but crystallizes it into a framework that is grounded in both precedent and principle. Importantly, as I will argue, it aligns with the interpretive impulses in Puttaswamy and other structuralist decisions, ensuring that silence does not become a source of democratic erosion nor a blank cheque for judicial invention.

1. Textual Vagueness – The constitutional provision must be open-textured, allowing multiple reasonable interpretations.

This prong recognizes that certain constitutional provisions are deliberately or inherently vague, inviting interpretation in light of evolving circumstances. As H.L.A. Hart observed in The Concept of Law, open-textured legal language permits adaptive reasoning in novel situations. In the constitutional context, such vagueness enables courts to respond to contemporary challenges (Doctrine of Living Tree) without deviating from the document’s structural logic. Where the text is silent or indeterminate, interpretive space is created—one that must be carefully filled through judicial construction. .

• Normative Conflict – The possible interpretation or continued silence regarding a constitutional provision must give rise to a risk of institutional or normative dysfunction that threatens foundational constitutional values.

The second criterion is rooted in the idea that silence should not become a vehicle for undermining constitutional morality. Where inaction or ambiguity threatens core values—such as dignity, autonomy, democracy, or the rule of law—the judiciary is justified in intervening. This prong acknowledges that the Constitution is not merely a legal code but a normative charter, and that its integrity sometimes depends on implied commitments that are not textually explicit but are functionally indispensable.

• Absence of Contradiction – No other constitutional provision should negate that particular provision.

The final criterion acts as a safeguard against overreach. It requires that any interpretive inference drawn from silence must not conflict with the express design of the Constitution. Courts cannot invent rights or obligations that are directly contradicted by other provisions; instead, the implication must be textually harmonious and structurally coherent. This ensures that judicial construction supplements—rather than subverts—the constitutional scheme. In Gian Kaur v. State of Punjab, for instance, the petitioners argued that, much like the right to free speech includes the right to remain silent, the right to life should include the right to die. However, the Court explicitly rejected this argument, holding that the right to die is inconsistent with the right to life under Article 21. The Court emphasized that the right to life is a natural right, and extinguishing life is the very antithesis of that right. This judgment exemplifies how an implied right must not contradict the textual or normative purpose of an explicit constitutional provision. It concluded that reading a “right to die” into the “right to life” would invert the constitutional intent of Article 21, which is centered on the preservation and sanctity of life.

Based on the aforementioned principles, courts have gone beyond textualist to a more structuralist and purposive approach, where structural reasoning did not look at individual words, but at the overarching design and logic of constitutional governance.

This interplay between textual fidelity and structural reasoning raises a critical question: How can courts operationalize such a framework while maintaining institutional legitimacy? The answer lies in synthesizing the three-part criterion with a broader structuralist methodology—one that interprets constitutional silence not as a void, but as a reflection of the document’s institutional design.

Structural Interpretation, Kable Doctrine, and the C1–C2 Framework

As noted earlier, in India, whenever an unenumerated rule or right is given the force of law, courts have not treated constitutional silence as mere textual omission. Rather, they have conceptualised it as a form of ‘non-presence’—a silence that signals the presence of unspoken constitutional commitments. The three-part criterion—textual vagueness, normative conflict, and absence of contradiction—identifies when courts may interpret constitutional silences. But it does not answer how such interpretation ought to proceed. To bridge this gap, I take recourse to Lee’s C1–C2 framework (open access can be found here) as a methodological tool, grounding judicial reasoning in both legal text (C1) and constitutional values (C2).

Lee states that courts while undertaking this exercise, typically rely upon on two epistemic pillars to justify filling these silences:

These two domains serve as filters: C1 and C2 often support and reinforce each other. For example, a principle inferred from text (C1) may be strengthened by systemic reasoning (C2) that shows why that principle is essential for the Constitution to function properly. Lee elucidates this through the Kable Doctrine (Kable v DPP (NSW) (1996)) – where the State law authorized the preventive detention of Gregory Kable, after he had completed his prison sentence. This law was not part of the ordinary criminal justice process—it was extraordinary legislation targeted at a single person, passed by the NSW Parliament. On its face, this might seem permissible under State legislative power. However, the critical issue before the High Court was that the power to order the detention was been in the NSW Supreme Court – which in effect involved a judicial body in what was effectively an executive-driven, punitive action.

This setup raised a fundamental constitutional concern: even though Australia’s Constitution does not explicitly require State courts to adhere to a strict separation of powers, State courts are empowered under Chapter III of the Constitution to exercise federal judicial power. The High Court, therefore, had to determine whether such legislation—requiring a court to act in a manner inconsistent with judicial independence—compromised the integrity of courts that are part of the federal judicial system. Through C1 reasoning, the Court examined the text and structure of Chapter III and invoked common law principles on judicial function. But it was through C2 reasoning—focused on maintaining public confidence in the judiciary and ensuring that courts are not perceived as mere tools of the executive—that the Court ultimately found the law constitutionally invalid. The separation of powers issue thus emerged not from an express constitutional mandate for State courts, but from the broader requirement that courts exercising federal jurisdiction must maintain their defining judicial characteristics.

Built on Kable’s foundation – in Kirk v Industrial Court (NSW) (2010), the High Court addressed the constitutional silence regarding the protection of State Supreme Courts’ supervisory jurisdiction by applying C1 (specific legal sources) and C2 (broader constitutional norms). Under C1, the Court relied on judicial precedents like Colonial Bank of Australia v Willan (1874), which affirmed that privative clauses could not oust jurisdiction over jurisdictional errors, and Craig v South Australia (1995), which upheld the continuity of supervisory review. It also drew from historical conventions, such as the pre-federation role of Supreme Courts as guardians of jurisdictional limits and Westminster traditions of judicial independence. These C1 elements were then synthesized with C2 principles, including the rule of law (preventing unchecked executive power) and the institutional integrity of courts as part of an integrated national judiciary under Chapter III of the Constitution. By combining precedents and conventions (C1) with systemic constitutional values (C2), the Court ruled that NSW could not legislate to strip Supreme Courts of their inherent power to review jurisdictional errors, thereby resolving the constitutional silence and reinforcing the judiciary’s role in upholding Australia’s constitutional framework.

How these pillars have operated in Indian jurisprudence will be demystified through a working example of Puttaswamy, where the Court gave the force of law to an unenumerated fundamental right to privacy.

Blending the Three-Part Criterion and C1-C2 Framework

1. Textual Vagueness: The Role of Open-Textured Provisions

The three-part criterion begins with textual vagueness, which refers to constitutional provisions that are open-textured, meaning they are broad enough to allow multiple reasonable interpretations. This is where the C1 axis (Legal Corpus) comes into play. Courts look to the constitutional text and prior judicial decisions to ground their interpretations. The legal corpus provides a framework for interpreting ambiguous provisions in a way that aligns with established jurisprudence.

In the Puttaswamy case, while the Indian Constitution did not explicitly mention a right to privacy, prior judgments such as Gobind v. State of M.P and Kharak Singh had already affirmed privacy-related interests under the broader umbrella (vague contours) of Article 21 (right to life and personal liberty). These precedents show that the Constitution contains “silences” or gaps that can be interpreted to encompass unenumerated rights. This aligns with C1, where the legal corpus—comprising judicial decisions and institutional conventions—helps fill the textual silence.

2. Normative Conflict: Preserving Constitutional Values

The second criterion, normative conflict, holds that the absence of a particular right would conflict with fundamental constitutional values such as dignity, liberty, and equality. This is where the C2 axis (Normative Framework) becomes crucial. The normative framework involves core constitutional values—such as dignity, autonomy, and justice—as well as comparative constitutional principles and international obligations that serve to guide judicial interpretation.

In Puttaswamy, the Supreme Court recognized that privacy is essential to the fulfillment of human dignity and autonomy, values embedded within the Constitution. Justice Chandrachud explicitly linked privacy with dignity, stating, privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve. Thus, the Court relied on the C2 normative framework, drawing from both Indian constitutional values and international human rights law to affirm privacy as a fundamental right. This approach ensures that silence in the text is not allowed to threaten the core values that sustain the Constitution’s democratic framework.

This aligns with the second point of the three-part criterion, as the absence of a right to privacy would fundamentally undermine constitutional values like dignity, liberty, and autonomy.

3. Absence of Contradiction: No Contradictory Constitutional Provisions

The Puttaswamy case did not encounter any direct contradiction in constitutional provisions that would override an implied right to privacy. In fact, the Supreme Court found that the right to privacy logically flowed from the other fundamental rights (broadly, constitutional principles) of right to life and personal liberty under Article 21. The lack of any constitutional provision explicitly denying privacy allowed the Court to read it into the Constitution.

Application to the Present Case

Having thus far established the permissibility and necessity of judicial construction in the face of constitutional silence—particularly where the three-part test (textual vagueness, normative conflict, and absence of contradiction) is satisfied, and where both the legal corpus (C1) and normative framework (C2) point toward an implicit constitutional commitment—it becomes essential to demonstrate that the recent interpretation of Article 200, especially the reading-in of a time limit for gubernatorial action, is a product of the same legitimate constitutional reasoning.

To begin with, the language of Article 200 itself contains an open-textured phrase: the Governor may return the Bill “as soon as possible” along with a message for reconsideration. The phrase is constitutionally significant precisely because of its indeterminacy. It invites interpretative construction, not as an act of judicial creativity but as an act of constitutional stewardship. The Supreme Court, in its judgment in State of Tamil Nadu v. Governor of Tamil Nadu, acknowledges that this vagueness cannot be allowed to ossify into inaction. As the Court in para 94 observed:

“The expression “as soon as possible” appearing in the first proviso infuses a sense of urgency and expediency in the mechanism of returning of bills by the Governor. It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency.”

This interpretation satisfies the first prong of the test: textual vagueness. The constitutional text does not specify a strict time frame, but because there is indeterminative language, it has interpretive space. This is precisely the sort of context in which the judiciary may legitimately construct meaning. Under the C1 axis, court turned to prior judicial pronouncements—particularly State of Punjab v. Principal Secretary to the Governor of Punjab—to inform their understanding of the constitutional role of the Governor in the legislative process. Each of these sources reinforces the view that indefinite delay is incompatible with constitutional structure.

Secondly, the prolonged withholding of assent without communication or justification poses a normative conflict—the second prong of the test. It disrupts the functioning of representative government by creating a procedural deadlock between an elected legislature and a nominated constitutional head. Such a scenario not only violates the spirit of Article 200 but also threatens core constitutional values such as representative democracy, federal balance, and the rule of law. As the Court rightly emphasized, Para 195 of the Judgment states:

Any other reading of the provision that construes the option of withholding of assent without attaching it to the mechanism prescribed in the first proviso would render the very idea of smooth functioning of the law-making process nugatory and would vest with the Governor untrammeled powers of thwarting the legislative machinery and in effect the will and aspirations of the people whose voices the legislature represents.

Here, the C2 axis—the normative framework of constitutional values—is critical. The Court’s reasoning is anchored in values such as democratic legitimacy, efficiency of governance, and fidelity to the principles of federalism.

Thirdly, the third prong—absence of contradiction—is also satisfied. Nowhere does the Constitution provide that the Governor may withhold assent indefinitely or that the temporal phrase in Article 200 must be construed as optional or discretionary. On the contrary, the absence of any contrary textual indication strengthens the presumption in favour of a purposive and time-bound reading of Article 200. This position finds support not only in structural reasoning but also in comparative constitutional analysis (e.g., Canadian and Australian models), where heads of state cannot frustrate legislative will through procedural delay.

In any case, what is important to note is that the court does not declare non-compliance of the time limit as ipso facto unconstitutional. Rather, it just opens such conduct to scrutiny under judicial review, meaning a court will assess the reasons for delay and decide whether the delay violates other constitutional principles. This is similar to what happened in Keisham Meghachandra Singh, where the Court, while postulating a “three-month outer limit” for deciding disqualification petitions filed before the Speaker, observed that the time limit is not an absolute or rigid one. It noted:

“What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule.”

Conclusion

The Constitution breathes through its pauses—those deliberate silences between clauses where democracy’s unwritten rules hum. The Supreme Court’s Article 200 ruling isn’t judicial embroidery on constitutional text, but the tuning of an instrument gone discordant. Governors were never meant to be constitutional black holes where bills vanish into event horizons of inaction. By measuring “as soon as possible” against democracy’s pulse, the Court didn’t invent time—it merely reminded us that sunset clauses are woven into the fabric of responsible governance.