When the Constitution Leaves the Rules Unwritten

A Constitution can be remarkably precise about who has power and surprisingly quiet about how that power must be exercised.

That difference matters.

A legislature may pass a law. A Governor may be required to consider it. A court may have the authority to review constitutional questions. Yet the Constitution may leave unanswered the practical questions that determine whether the system actually works: How quickly must a constitutional office act? When does discretion begin? When does it end? What happens when one institution simply refuses to act?

These are not technical footnotes. They can determine whether an elected legislature can legislate, whether a State government can govern, and whether a constitutional office designed to connect institutions instead becomes the site of conflict between them.

India’s experience with Governors and State legislation offers a revealing example. The deeper problem is not merely that the Constitution contains ambiguities. It is that constitutional silence can turn ordinary institutional disagreement into a struggle over who gets to define the rules themselves.

The Constitution can allocate power without completing the procedure

Article 200 illustrates the problem unusually well.

When a Bill passed by a State legislature reaches the Governor, the Constitution provides several possible courses: assent to the Bill, withhold assent, return it for reconsideration, or reserve it for the President’s consideration in specified circumstances. The first proviso also says that a Bill returned for reconsideration must be dealt with by the Governor again if the legislature passes it once more.

But there is an important omission.

The Constitution does not prescribe a precise time limit within which the Governor must act. Instead, the proviso uses the phrase “as soon as possible.” That sounds like a rule until an institution asks the obvious question: How soon is possible?

The distinction between those two formulations is enormous.

A constitutional rule that says an office must act within 30 days leaves little room for procedural disagreement. A constitutional rule that says it must act “as soon as possible” requires interpretation when the office does not act at all.

That is where constitutional design begins to depend on conventions, institutional restraint and, eventually, judicial interpretation.

The same pattern appears elsewhere in the constitutional relationship between Governors and State governments. The Constitution establishes the Governor as the formal head of the State executive, while the working principle of parliamentary government ordinarily requires the Governor to act on the aid and advice of the Council of Ministers. The Supreme Court and the Sarkaria and Punchhi Commissions have repeatedly addressed the limits of gubernatorial discretion. Yet disagreements over particular situations have continued because the Constitution does not codify every operational circumstance in advance.

This is not necessarily a defect unique to India.

No Constitution can anticipate every political configuration. Constitutional systems survive partly because institutions develop conventions around broad principles. The difficulty begins when the convention itself becomes contested.

Then the question changes from “What does the Constitution say?” to “Who decides what the Constitution requires when it has not said enough?”

Silence creates a space for institutions to negotiate

This is why constitutional ambiguity should not be confused with constitutional weakness.

Sometimes leaving a rule open-ended is deliberate. A Constitution needs enough flexibility to operate across circumstances that its framers cannot predict. A rigid rule for every possible situation can make constitutional government less adaptable.

But flexibility has a cost.

Where institutions broadly trust one another, an open-ended provision can function through convention. Where they do not, the same provision can become an arena for competing interpretations.

The Governor’s role in appointing a Chief Minister in a hung Assembly offers another example. Article 164 provides that the Governor appoints the Chief Minister, but the Constitution does not lay down a detailed sequence for choosing whom to invite when no party has a clear majority. The Sarkaria and Punchhi Commissions subsequently recommended conventions for such situations. Yet Governors have followed different approaches in comparable circumstances, leading to political and judicial disputes. The Supreme Court has repeatedly treated the floor of the House as the place where majority support should ordinarily be established.

The underlying issue is broader than the Governor.

Constitutional systems frequently depend on rules plus conventions. The written rule establishes the boundary; convention determines how that boundary is normally navigated.

But conventions have one weakness: they depend on acceptance.

Once competing institutions stop accepting the same convention, the written Constitution may not contain enough procedural detail to settle the dispute immediately.

That is when constitutional conflict becomes possible.

The Governor problem is really a problem of institutional timing

The dispute over Bills passed by State legislatures makes this especially visible.

Several States approached the Supreme Court after Governors were accused of delaying action on legislation. Punjab, for example, moved the Court in 2023 over Bills pending with the Governor. In November 2024, the Supreme Court said a Governor could not keep a Bill pending indefinitely without taking any action. Tamil Nadu’s dispute eventually became more consequential, with the Supreme Court examining the meaning of Article 200 and the consequences of prolonged inaction.

The central difficulty was not simply whether the Governor possessed a constitutional option.

It was whether inaction itself could become an option.

The constitutional text lists courses of action. It does not expressly list “do nothing indefinitely.”

Yet without a clear temporal boundary, the practical difference between an authorised decision and indefinite inaction can become blurred.

A Governor who rejects a Bill must exercise a constitutionally recognisable option.

A Governor who does nothing can create almost the same practical consequence without formally choosing one.

That is why the seemingly minor phrase “as soon as possible” becomes constitutionally significant.

The institutional question is no longer simply about assent. It is about whether silence can exercise power.

The courts enter when the rules stop operating

This is where judicial intervention becomes almost inevitable.

Courts are not normally supposed to design the day-to-day functioning of constitutional institutions. But courts are also asked to interpret constitutional provisions when competing institutions disagree about what those provisions require.

That creates a difficult boundary.

If the Constitution provides a power but does not specify its operating limits, judicial interpretation can clarify the boundary. But if a court goes further and creates a detailed procedure where the constitutional text is silent, another question arises: is the court interpreting the Constitution or effectively adding to it?

The Tamil Nadu Governor case brought that question directly into view.

In April 2025, the Supreme Court ruled on the prolonged withholding of assent to Bills passed by the Tamil Nadu legislature. The judgment interpreted Article 200, rejected the idea that the Governor could simply sit indefinitely on legislation, and prescribed timelines for action. It also used Article 142 in dealing with the Bills before it.

One interpretation of the judgment sees this as the judiciary supplying constitutional discipline where indefinite delay had created a practical gap. The argument is straightforward: if the Constitution requires a constitutional office to act, allowing that office to avoid action indefinitely would turn procedural silence into substantive power.

Another interpretation sees a different danger.

If the Constitution does not prescribe a timeline, can a court create one? If the Constitution assigns a function to the Governor or President, how far can judicial directions go before they begin to alter the constitutional distribution of power?

Those are not merely competing political positions. They are competing theories of constitutional interpretation.

And that distinction matters.

The problem becomes sharper when the Court itself becomes part of the rule-making process

The 2025 Presidential Reference brought the institutional boundary into sharper focus.

Following the April judgment, the President sought the Supreme Court’s advisory opinion under Article 143 on 14 constitutional questions concerning the powers of Governors and the President under Articles 200 and 201. Among the questions was whether courts could prescribe timelines where the Constitution itself had not prescribed them, whether gubernatorial discretion was justiciable, and whether judicial power under Article 142 could substitute for constitutional powers exercised by the Governor or President.

The resulting advisory opinion produced a different understanding of the problem.

The five-judge Bench held that the Court could not impose fixed timelines on Governors in the manner contemplated by the earlier judgment. At the same time, it recognised a limited possibility of judicial intervention where inaction becomes prolonged, unexplained and indefinite. The opinion therefore did not simply eliminate judicial review; it drew a different boundary around it.

That distinction exposes the deeper constitutional dilemma.

One danger is institutional paralysis: an office exercises an open-ended power, delays action, and leaves an elected legislature unable to complete the legislative process.

The other is institutional substitution: a court responds to that paralysis by creating procedures or remedies that begin to resemble the exercise of powers constitutionally assigned to another institution.

The first can push courts toward intervention. The second demands judicial restraint.

A constitutional system has to navigate both.

The disagreement is not simply Centre versus State

It is tempting to reduce these disputes to a familiar federal binary: the Union on one side and the States on the other.

But that is too simple.

The real institutional triangle is often State legislature → Governor → judiciary.

The Governor occupies an unusual position within this triangle. The office is part of the constitutional structure of the State, but the Governor is appointed by the President. The office therefore sits at the intersection of Union and State constitutional arrangements.

That makes the Governor’s discretionary space especially sensitive.

The dispute over Vice-Chancellor appointments illustrates how quickly such ambiguity can spread into other areas. Existing State laws may prescribe one process for appointing university heads, while UGC regulations may prescribe another. In several States, disagreements have emerged over the Governor-Chancellor’s role, the composition of search committees and the respective authority of State governments and the UGC.

The underlying issue is again not simply who is right.

It is which institutional rule controls when different legal and constitutional arrangements intersect.

When that hierarchy is clear, conflict can be resolved within the system.

When it is unclear, institutions increasingly turn to courts to determine the boundary.

The court then becomes not merely an adjudicator of an existing dispute, but an interpreter of the relationship between institutions themselves.

Judicial intervention can solve one ambiguity while creating another

This is the paradox at the heart of constitutional adjudication.

A court may intervene because an unresolved ambiguity is preventing the constitutional system from functioning. Its intervention can restore functionality.

But that intervention may itself create a new question about institutional boundaries.

The April 2025 Tamil Nadu judgment demonstrates this tension particularly clearly. Some constitutional commentators regarded the Court’s intervention as necessary to prevent an unelected office from frustrating the legislative process. Others argued that the Court went too far, particularly in prescribing procedures and consequences not expressly stated in Article 200. The later Presidential Reference itself centred on the constitutional boundaries between executive and judicial authority.

Neither interpretation can simply be erased.

If the first is ignored, judicial review becomes almost meaningless whenever constitutional actors exploit procedural gaps.

If the second is ignored, courts risk becoming participants in constitutional governance rather than its interpreters.

The difficult question is therefore not whether courts should intervene.

It is when intervention is necessary to make the Constitution work, and when intervention begins to change the constitutional allocation of power itself.

Constitutional silence is not neutral

This leads to a more important insight.

A constitutional gap may look like an absence of power. In practice, it can become a distribution of power.

Suppose a Constitution gives an institution three possible choices but does not specify when one must be exercised. The institution may acquire practical influence simply through delay.

Suppose a court then responds by creating a procedural deadline. The court acquires a new form of influence over how another constitutional office exercises its power.

Neither development necessarily appears in the original allocation of powers.

The first emerges from silence by the Constitution.

The second emerges from interpretation by the judiciary.

That is why constitutional design cannot be judged only by reading the list of powers assigned to each institution. One must also ask what happens when the Constitution does not specify the operating rules.

Who fills the gap?

A convention?

The executive?

Parliament?

The courts?

Or the institutions themselves through negotiation?

The answer can change the practical balance of a constitutional system without changing a single formal entry in the distribution of powers.

India has repeatedly relied on institutions to complete the Constitution’s operating rules

This is not limited to Article 200.

Article 356 provides another illustration of how constitutional text, institutional practice and judicial interpretation interact.

The Constitution permits President’s Rule when the government of a State cannot be carried on in accordance with constitutional provisions. The provision was designed as an exceptional mechanism. Yet its historical use generated disputes over what constituted a constitutional breakdown and when the Union could intervene.

The Supreme Court’s decision in S.R. Bommai v. Union of India became a major constitutional checkpoint. It held that Article 356 could not be treated as an ordinary political instrument and subjected its use to judicial review, distinguishing a breakdown of constitutional machinery from an ordinary breakdown of law and order. Subsequent cases further demonstrated the judiciary’s role in checking wrongful uses of the provision.

The pattern is revealing.

The Constitution creates the framework. Political practice tests its limits. Institutions respond to those tests. Courts interpret the resulting disputes.

Over time, judicial decisions and constitutional conventions become part of the practical meaning of the Constitution.

A written Constitution therefore evolves not only through formal amendments, but also through the accumulated interpretation of situations its text did not fully anticipate.

The real constitutional challenge is knowing where interpretation should stop

That makes constitutional silence neither inherently good nor inherently bad.

Some degree of openness is unavoidable. A Constitution written with exhaustive procedural instructions would quickly become rigid. Institutions need room to adapt.

But constitutional flexibility works only when accompanied by institutional restraint.

A Governor needs to recognise the difference between constitutional discretion and political authority. A State government needs to recognise the constitutional limits on its legislative power. The Union needs to recognise that a Governor is not simply an extension of the Union executive. And courts need to distinguish between enforcing constitutional boundaries and redesigning them.

The problem becomes particularly acute when one institution’s failure to exercise restraint is used to justify another institution expanding its own role.

That is how constitutional disputes can become self-reinforcing.

Ambiguity creates conflict. Conflict invites adjudication. Adjudication creates new boundaries. Those boundaries generate new questions about institutional authority.

The Constitution remains the same document, but the practical relationship among its institutions changes.

The deeper lesson

The most important lesson from India’s federal disputes is therefore not that the Constitution is too centralised, too flexible, or too dependent on judicial interpretation.

It is that constitutional power exists at two levels.

There is the power explicitly written into the constitutional text.

And there is the power that emerges from the unanswered questions surrounding that text.

The second kind can be just as consequential as the first.

A Governor who can delay without a clearly defined deadline possesses a form of procedural power even without an explicit veto.

A court that must decide whether that delay is constitutionally permissible acquires influence over the boundary of gubernatorial power.

A legislature whose lawmaking depends on the resolution of that dispute becomes dependent on an institutional process that the Constitution did not fully specify.

This is why constitutional design cannot end with asking who has the power.

The more difficult question is:

What happens when the Constitution gives them the power but leaves the rules of its operation unwritten?

In a healthy constitutional system, those gaps are filled by convention, restraint and institutional dialogue before they become crises.

When that fails, courts are pulled in.

And once courts enter the space created by constitutional silence, they face a dilemma of their own: repair the gap without becoming the author of a new constitutional arrangement.

That boundary may never be perfectly fixed.

But recognising that the boundary exists is essential.

Because the durability of a Constitution depends not only on the powers it distributes, but also on the discipline with which every institution accepts the limits of what it can do when the text itself falls silent.