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Presidential Reference And The Role Of The Supreme Court

President Droupadi Murmu recently asked the Supreme Court to give its opinion on a serious legal matter. This step, called a Presidential Reference, was made because the Court had earlier given a judgment setting time limits for how long a Governor or the President can take to approve or reject a Bill passed by a state legislature.

Now, the President wants to know whether such time limits can be set by the Court, and if decisions made before a Bill becomes law can be reviewed by the courts. This has raised several important questions about how the Constitution works when it comes to the roles of Governors, the President, and the Supreme Court.

In this article, we explain what a Presidential Reference is, what questions have been asked this time, and what the Constitution and past cases tell us about this process.

Presidential Reference And The Constitutional Framework

The President of India holds the constitutional authority to request the Supreme Court’s advisory opinion on matters of public importance involving legal interpretation. This power, enshrined in Article 143, enables the executive to clarify legal ambiguities without engaging in litigation.

Article 143

Article 143 empowers the President to consult the Supreme Court on any question of law or fact that is significant to the public. It consists of two parts:

  • Article 143(1) permits the President to seek opinion on legal or factual matters likely to arise or already in existence. The Supreme Court has the discretion to respond or decline.
  • Article 143(2) mandates the Court’s response when the issue pertains to treaties or covenants predating the Constitution.

In both cases, the Court’s opinion is advisory and not binding. However, it is usually accepted by the executive and commands substantial moral authority.

Articles 200 And 201

Article 200 outlines the process for gubernatorial assent to Bills passed by state legislatures. Article 201 relates to the President’s role in assenting to such Bills when they are reserved for presidential consideration. These articles do not provide specific timelines, which is a major point of contention in the ongoing reference.

Article 142

Article 142 of the Indian Constitution grants special powers to the Supreme Court, enabling it to issue any order or decree deemed essential to ensure “complete justice” in matters before it. This authority extends across the entire territory of India, ensuring uniform enforceability.

  • Facilitating Judicial Activism in Special Circumstances: Article 142 empowers the Supreme Court to take actions that may transcend conventional judicial boundaries. It has, at times, assumed executive or quasi-legislative roles by framing guidelines or issuing directions to government bodies and public institutions, especially in cases where legislative or executive voids exist.
  • Protection of Constitutional and Fundamental Rights: The provision plays a vital role in safeguarding constitutional mandates and fundamental rights. It allows the Supreme Court to intervene decisively in issues involving public interest, social justice, and human rights, thereby acting as a bulwark against violations or arbitrary actions.
  • Enhancing the Role of the Judiciary: By enabling the Court to deliver substantive justice even when statutory remedies fall short, Article 142 strengthens the judiciary’s position as the ultimate interpreter and protector of the Constitution.
  • Criticism and Concerns: Despite its utility, Article 142 has been a subject of debate due to its potential to blur the lines between the judiciary, the legislature, and the executive. Critics argue that its expansive interpretation could lead to judicial overreach, thereby challenging the democratic principle of separation of powers and inviting allegations of activism from the bench.

President’s 14 Questions to Supreme Court

  1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200?
  2. Is Governor bound by the aid & advice of the Council of Ministers while exercising the options available with him when a Bill is presented before him?
  3. Is Governor’s constitutional discretion under Article 200 justiciable?
  4. Is Article 361 an absolute bar to the judicial review in relation to the actions of a Governor under Article 200?
  5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders?
  6. Is the exercise of constitutional discretion by President under Article 201 justiciable?
  7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders?
  8. Is the President required to seek advice of the Supreme Court by way of a reference under Article 143 and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?
  9. Are the decisions of the Governor and the President under Article 200 and Article 201, respectively, justiciable at a stage anterior to the law coming into force? Is it permissible for the Courts to undertake judicial review of the contents of a Bill, in any manner, before it becomes law?
  10. Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142?
  11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200?
  12. In view of the proviso to Article 145(3), is it not mandatory for any Bench hearing the reference to consist of a minimum of five Judges as it involves substantial questions of law as to the interpretation of the Constitution and also a need to minimise “judicial delays”?
  13. Are the powers of the Supreme Court under Article 142 limited to matters of procedural law or Article 142 extends to such situations which have no statutory backing and which are not covered under the codified provisions of the Constitution then in force?
  14. Does the Constitution bar any other jurisdiction of the Supreme Court except the advisory one in relation to Union Government and the State Government under Article 131 of the Constitution of India?

The Nature And Significance Of Advisory Opinions

  • Legal Value of Advisory Opinions: Although not binding, advisory opinions under Article 143 often influence government decisions and subsequent judicial interpretations. They are deliberated by a minimum five-judge bench as mandated by Article 145, ensuring a high level of scrutiny and expertise.
  • Justiciability Before Law is Enacted: A key question raised in the current reference is whether decisions taken by Governors or the President—before a Bill becomes law—can be challenged in court. This directly tests the limits of judicial review at the pre-legislative stage.

Historical Development Of Article 143

  • Origins in Colonial Legislation: The concept of advisory jurisdiction was derived from Section 213 of the Government of India Act, 1935. This section authorized the Governor-General to seek the opinion of the federal court on questions of law or fact. India retained this feature post-independence, adapting it to fit the democratic and federal framework of the Constitution.
  • Comparative Constitutional Perspectives: Other democracies have adopted varied approaches. In Canada, the Supreme Court can issue advisory opinions at the request of federal or provincial authorities. Contrastingly, the United States does not permit such opinions, emphasizing the strict separation of powers between the executive and judiciary.

A Retrospective On Presidential References

Since 1951, fifteen references have been made to the Supreme Court under Article 143. Below is a thematic breakdown of each case:

1. The Delhi Laws Act, 1912 (1951)
Issue: Limits of legislative delegation
Court’s Opinion: The legislature cannot delegate essential functions like policy-making but can delegate ancillary functions. Judges differed on the extent of permissible delegation.
2. Kerala Education Bill, 1957 (1958)
Issue: State control over private minority-run schools
Court’s Opinion: The Bill violated Article 30(1) by conferring unguided powers to the state, affecting minority rights.
3. Berubari Union Agreement (1960)
Issue: Need for legislation to implement India-Pakistan territory agreement
Court’s Opinion: A constitutional amendment under Article 368 is required; Article 3 could be amended for such purposes.
4. Bill to Amend the Sea Customs Act, 1878 (1963)
Issue: Whether the Bill violated Article 289 (State immunity from Union taxation)
Court’s Opinion: By a 5:4 majority, indirect taxes like customs duties do not violate Article 289.
5. Special Reference No.1 of 1964 (U.P. Assembly vs Judiciary)
Issue: Contempt powers of state legislatures over judges
Court’s Opinion: The Assembly exceeded its powers; Article 226 grants High Courts power against state legislatures.
6. Special Reference No.1 of 1974 (Presidential Election)
Issue: Voting rights of dissolved assemblies in Presidential elections
Court’s Opinion: Dissolved assemblies cannot vote; elections must be held before term ends, and outgoing President can remain until successor assumes office.
7. The Special Courts Bill, 1978
Issue: Constitutionality of Special Courts
Court’s Opinion: Parliament can set up Special Courts; appeal provisions to the Supreme Court were valid.
8. J&K Resettlement Bill (2001)
Issue: Validity of a law allowing return of J&K residents from Pakistan
Court’s Opinion: As the Bill became law in 1982, the Court found it inexpedient to offer an opinion; later repealed post Article 370 abrogation.
9. Cauvery Water Disputes Tribunal (1991)
Issue: Constitutionality of Karnataka’s law nullifying tribunal’s interim order
Court’s Opinion: State had no competence to override tribunal’s decision; Tribunal had power to grant interim relief.
10. Special Reference I of 1994 (Babri Masjid Dispute)
Issue: Existence of a Hindu temple at Babri Masjid site
Court’s Opinion: Declined to answer as revived suits provided legal forum; found reference lacked alternative dispute mechanism.
11. Special Reference No.1 of 1998 (Third Judges Case)
Issue: Interpretation of ‘consultation’ in judicial appointments
Court’s Opinion: CJI’s opinion must be formed via consultation with a collegium (plurality of judges); expanded collegium to five judges.
12. Special Reference No.1 of 2001 (Gujarat Gas Act)
Issue: Legislative competence of Gujarat over natural gas
Court’s Opinion: Natural gas is a Union subject; Gujarat law ultra vires to the extent it covers natural gas.
13. Special Reference No.1 of 2002 (Gujarat Assembly Dissolution)
Issue: EC’s power vs Article 174 (session gap)
Court’s Opinion: Article 174 applies to existing assemblies; EC and Article 174 operate in separate domains.
14. Special Reference No.1 of 2012 (2G Spectrum Case)
Issue: Whether auction is mandatory for all natural resources
Court’s Opinion: Auction not the only method; Court declined to answer other questions as government accepted the 2G verdict.
15. Punjab Termination of Agreements Act, 2004 (2016)
Issue: Validity of Punjab’s law terminating water-sharing agreements
Court’s Opinion: Declared the Act unconstitutional; Punjab cannot unilaterally nullify binding inter-state agreements.

Relevance And Boundaries Of Judicial Advice

  • Encouraging Constitutional Clarity: Article 143 functions not as a review or appeal mechanism, but as a tool for constitutional dialogue. It enables the executive to seek legal clarity on governance issues affecting multiple stakeholders, such as states or the citizenry at large.
  • Maintaining Institutional Balance: Judicial engagement via Article 143 preserves constitutional equilibrium by allowing the judiciary to clarify the extent of executive powers. It becomes particularly important in cases involving Articles 200 and 201, where ambiguity could result in legal vacuum or misuse of discretionary powers.
  • Upholding the President’s Unique Role: The President, although a constitutional figurehead in many respects, performs essential functions when invoking Article 143. This action does not represent grievance but constitutional foresight, enabling governance to proceed with legal certainty.

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