[Answered] Examine how the 16th Presidential reference could potentially endanger the will of the people. Critically analyze its implications for the federal structure and judicial review.”

Introduction

India is constitutionally a cooperative federal polity, where elected State governments reflect popular will. The 16th Presidential Reference (2023) over gubernatorial powers, if expansively interpreted, risks diluting democratic mandates, constitutional morality, and federal balance.

How the 16th Presidential Reference May Endanger the Will of the People

1. Inversion of Democratic Accountability: Governors are unelected constitutional heads, yet the reference—by validating broad discretionary space—may allow them to override or delay legislation passed by democratically elected State Assemblies, undermining popular sovereignty (Article 326). Example: Several State Bills in Tamil Nadu, Kerala, Punjab, Telangana were kept pending for months, effectively creating a pocket veto contrary to constitutional conventions.
2. Erosion of Representative Mandates: If Governors return Bills repeatedly or indefinitely reserve them for the President, the elected Legislature becomes subordinate to an appointee of the Union. This contradicts:

• Ambedkar’s stance: Governors must act as “constitutional heads,” not parallel authorities.
• R. Bommai (1994): Federalism is part of the Basic Structure.

3. Potential for Executive Overreach: The article highlights coordinated centralization moves: Delayed GST compensation, Excessive conditionalities in CSS schemes, Use of ED/CBI/IT to pressure State governments, Governor’s delays becoming a political tool. The reference risks formalising such trends, enabling the Union to engineer political outcomes by non-legislative means.

Implications for India’s Federal Structure

1. Weakening of Cooperative Federalism: The Supreme Court’s opinion, by not fixing a reasonable timeline under Article 200, may strengthen asymmetry in favour of the Union, reducing States to “subordinate administrative units.” Finance Commission 15th Report (2021) already notes growing fiscal centralisation—States’ share in divisible pool stagnates ~42% while cess/surcharge (non-shareable) crossed 25% of gross tax revenue.
2. Departure from Constitutional Scheme: The Constituent Assembly debates emphasised that: Governors must “aid and advise” the Council of Ministers (Article 163), Discretion should be exceptional, not routine. The reference, however, allows expanded discretion without accountability, violating the doctrine of limited government and federal comity.
3. Risk to Pluralism and Regional Autonomy: States are the primary arenas of land, agriculture, law & order, public health—core to Schedule VII, State List. Unchecked gubernatorial powers could destabilise regional policy priorities (e.g., farm reforms, reservation policies, police reforms).

Implications for Judicial Review

1. Curtailing Judicial Oversight: If actions of Governor/President in withholding, delaying, or reserving Bills are treated as immune, this undermines: Judicial Review (Kesavananda Bharati, 1973)—a Basic Structure feature, Reasonableness under Article 14, Administrative non-arbitrariness (Maneka Gandhi, 1978).
2. Rise of “Political Constitutionalism” over “Legal Constitutionalism”: Judicial reluctance to set timelines shifts constitutional accountability from courts to political actors, weakening the checks and balances essential to federal governance.

Conclusion

As Granville Austin observed, India’s Constitution is a “seamless web of federalism and democracy.” Preserving judicial review and limiting gubernatorial overreach remain vital for protecting people’s mandate and constitutional balance.