President Droupadi Murmu sought the advisory opinion of the Supreme Court on certain constitutional questions on May 13, 2025. The 14 questions were posed in a reference made under Article 143 of the Constitution and seek clarification on the legal framework surrounding the timelines and powers of the president and governors regarding assent to state bills under Articles 200 and 201 of the Constitution.
The presidential reference came in the wake of the April 8 judgment of the Supreme Court in the case of State of Tamil Nadu vs Governor of Tamil Nadu, in which specific timelines were set by the court for the president and governors to act on state bills. The court had set aside the decisions of the governor and the president in 10 bills passed by the state assembly.
Several aspects of the Supreme Court judgment are touched upon by the questions in the presidential reference. The questions relate to complex issues of balance in a federal polity, executive discretion, and judicial review. Important issues raised include whether judicial review can occur before a bill becomes law, and whether the constitutional powers of the governor or the president can be overridden by the Supreme Court under Article 142.
This the first instance during the tenure of Narendra Modi as prime minister that the Supreme Court has been consulted under Article 143(1) of the Constitution of India.
The presidential reference has led to some controversy. One argument is that a bench of the Supreme Court has already directly answered most of the questions in the judgment in the Tamil Nadu case. In the circumstances, critics observe that the reference is an attempt to circumvent the ‘review’ and ‘curative’ mechanisms that must ideally serve to challenge the judgments of the Supreme Court.
The 14 Questions Referred
1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?
2. Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?
3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?
4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?
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 for the exercise of all powers under Article 200 of the Constitution of India by the Governor?
6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India 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 for the exercise of discretion by the President under Article 201 of the Constitution of India?
8. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India 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 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over 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 of the Constitution of India?
11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?
12. In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Hon’ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?
13. Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions/ passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
14. Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?
About Article 143
What the article says Article 143 of the Constitution is about the power of the president to consult the Supreme Court. It says:
1. If at any time it appears to the president that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the president its opinion on it.
2. The president may, notwithstanding anything in the proviso to Article 131 (original jurisdiction of the Supreme Court), refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the president its opinion on it.
(Article 143 (2) is concerned with disputes related to pre-Constitution treaties, agreements, covenants, or other similar instruments, or disputes between states or between the Union and states.)
Article 143, thus, empowers the Supreme Court with advisory jurisdiction.
Process of considering the reference Once the reference goes to the Supreme Court, the court conducts hearings and then reports its opinion to the president.
Article 145(3) asserts that the “minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five”.
Therefore, a five-judge Constitution Bench set up by the Chief Justice of India considers a presidential reference.
Scope of Article 143 The president, by invoking Article 143, acknowledges that the role of the Supreme Court includes that of being a constitutional adviser. It must be noted that, though it is called a ‘presidential reference’, in actuality, it is the council of ministers that initiates the reference. According to Article 74 of the Constitution, the president has to act on the advice of the council of ministers, so it is implied that a matter referred to the Supreme Court has been, in fact, put forward by the council of ministers. At the same time, as per Article 74(2), the Supreme Court is not allowed to examine such advice.
The Supreme Court’s advisory jurisdiction is limited to the specific questions raised by the president in the reference. As it was held in the Kerala Education Bill case (1957), the court cannot go beyond the reference.
Legal experts have pointed out that a legal issue already decided by the court cannot be brought before it again through a reference under Article 143. A reference cannot seek to challenge the correctness of a judgment already delivered. In other words, the court, in its advisory capacity, cannot be turned into taking up appellate or review jurisdiction; this was clarified in the 1992 reference on the Cauvery waters dispute.
Opinions given by the Supreme Court under Article 143(1) do not carry the force of law as these are not adjudications; hence, these opinions are not binding on the government. It has been pointed out that the word ‘consult’ implies that the opinion is not binding on the president. In Article 142, which deals with the enforcement of decrees and orders of Supreme Court, it is stated that only decrees and orders of the Supreme Court can be enforced. An opinion, being neither a decree nor an order, cannot be enforced. However, the opinions given by the Supreme Court are persuasive, and disregarding such opinion may prove politically controversial.
Under Clause 1 of Article 143, the court ‘may’, for good reasons, decline to express any opinion on the questions submitted to it, though in the Kerala Education Bill case of 1957, the court opined that it is obligatory on the Supreme Court to consider a reference and to report to the president if the reference is under Clause 2 of Article 143. In the Special Courts Bill, 1978, the court gave its opinion that the right of the court to decline to answer a reference does not come merely out of the use of ‘may’ in Clause (1) and the use of ‘shall’ in Clause (2); even in matters arising under Clause (2), it may be justified for the court to return the reference unanswered if it finds that it is not possible for the question to be answered. It is also within the power of the court to decline to offer an opinion if the referred questions are considered to be purely of a political or socio-economic nature and have no constitutional relevance.
The most important source which led to the incorporation of the president’s power of reference in the Constitution is the Government of India Act, 1935. Section 213 of this Act empowered the Governor-General to seek the Federal Court’s opinion on significant legal issues.
Importance of presidential references The device of presidential references and the Supreme Court’s advisory role ensures that the executive can get the difficult legal issues resolved; confusing aspects and ambiguities in the Constitution can be clarified; and separation of powers is maintained as the court’s opinion is ‘advisory’ and not binding, thus avoiding judicial interference in executive functioning even while the executive avails the court’s expert views on complex legal or constitutional issues.
Presidential References in India (1950–2024)
Article 143 has been invoked a number of times since independence and over the past 75 years, the court has dealt with 15 such references. The details are outlined below.
The Delhi Laws Act, 1912 was the first case of presidential reference to the Supreme Court. The question related to the power to delegate legislative power to other state organs. The seven-judge bench on May 23, 1951 affirmed that the legislature (the reference being to Parliament) may delegate powers for the effective implementation of laws, but the legislative powers vested with the Parliament should not be abridged. At the same time, an “essential legislative function” cannot be delegated to the executive, opined the court.
In the reference on the Kerala Education Bill, 1958, a seven-judge bench said that a harmonious construction of the fundamental rights and the directive principles had to be formulated and that minority educational institutions were to be protected but such institutions could not deny access to anybody solely on the grounds of religion, caste, or language.
In the Berubari Union case, 1960, an eight-judge bench dealt with the issue of implementing bilateral agreement between India and Pakistan relating to the cession of some parts of the Indian territory to Pakistan. The question was whether a simple law passed by Parliament was sufficient to implement the agreement. The Supreme Court opined that implementing an agreement between countries involving cession of territory from one to the other required a constitutional amendment under Article 368.
In the Sea Customs Act 1878 case, a nine-judge bench examined authority of the central government to impose certain taxes. The court on May 10, 1963 opined with a majority (5-4) that Parliament is barred by the Constitution only from imposing a tax on property of the states and if such restriction was extended to the imposition of custom duty, the power of the central government to regulate interstate commerce and foreign trade would be adversely affected.
The Powers, Privileges and Immunities of State Legislatures case (the Keshav Singh case), 1964 was heard by a seven-judge bench and involved standoff between the Uttar Pradesh Legislative Assembly and the state high court. The legislature sentenced Keshav Singh for contempt. A petition was filed before the high court to review the detention of Keshav Singh. The high court granted bail to him, as a result of which the assembly, ordered contempt proceedings against the judges considering the matter. The Supreme Court on September 30, 1964 opined that the high court was empowered to review the sentence, and that the legislature had no power to initiate contempt proceedings against the judges of the high court. Judicial independence was asserted, and limits were placed on legislative powers of contempt.
In the Presidential Poll case, 1974, a seven-judge bench considered whether the election to fill the vacancy caused on the expiry of the term of office of the president must be completed before the expiry of the term of office notwithstanding the fact that the Legislative Assembly of the State of Gujarat was dissolved. The court opined that the election to the office of the president must be held before the expiration of the term of the president notwithstanding the fact that at the time of such election the legislative assembly of a state is dissolved. It is only when a successor has not entered on his office that a president, whose term has expired, could continue.
The Special Courts Bill case, 1978, revolved round a bill seeking to set up special courts to consider cases related to offences committed by people holding high political offices during the time of Emergency. A seven-judge bench examined whether the implementation of the said bill would be violative any of provision of the Constitution. After considering various aspects of the bill, the court opined that the implementation of the law, with some suggested alteration would be constitutional in nature.
In the reference of the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Bill, 1980, the Supreme Court, on November 6, 2001, delivered its advisory opinion through a five-judge Bench. The Bill aimed to permit the return and permanent resettlement of persons who migrated from Jammu and Kashmir to territories now in Pakistan between March 1, 1947 and May 14, 1954.
Though initially returned by the Governor, the Bill was re-enacted by the J & K Legislative Assembly and received assent in 1982. Meanwhile, the President referred it to the court for an opinion on its constitutional validity.
As the bill had been enacted in 1982, the Supreme Court deemed it inexpedient to render an opinion on the Presidential reference, stating that even if it were to find the Act unconstitutional it could not invalidate the Act in an advisory capacity. The court later dismissed related writ petitions, observing that the Act was never operationalised and stood repealed following the abrogation of Jammu and Kashmir’s special status in 2019.
In the Cauvery Water Disputes Tribunal reference of 1991, a five-judge bench addressed whether one party can refuse to implement an interim order by the tribunal by enacting an ordinance. The Supreme Court on November 22, 1991 opined that such a unilateral action cannot be taken by any of the parties, as it is violative of the rule of law and the principles of natural justice.
The Ram Janma Bhumi-Babri Masjid case is no longer of interest as it has been settled, but a reference in the matter on Acquisition of Certain Area at Ayodhya Act, 1993, was made to the Supreme Court by the president in 1994, and was taken up by a five-judge bench. The court was asked whether a Hindu temple existed where the Babri Masjid was constructed on the disputed land. The Supreme Court declined to answer the reference question; it is the only reference so returned without an answer as of 2024, a rare occasion of the court drawing a boundary for its discretionary power. The court’s reasons were that the matter was under litigation; in the court’s opinion, if an answer were given, it could be possibly misused by the government in the ongoing negotiations; the reference was framed in such a way as to favour one of the parties in the dispute.
The reference known as the Third Judges Case in respect of the appointment and transfer of judges was made in 1998 when the government did not agree with the recommendation made by the Chief Justice of India. A nine-judge bench clarified that the recommendation made by the Chief Justice of India has to be considered along with the opinion of the various judges. Besides, the chief justice is obliged to follow the norms and procedure of the consultation process. If the given norms have not been followed, the recommendation given by the chief justice would not be binding upon the government.
The presidential reference in the Gujarat Gas Regulation of Transmission, Supply and Distribution Act, 2001 case involved a question regarding the constitutional validity of a state law regulating the use and distribution of natural gas and liquefied petroleum gas in light of this subject being on the Union List. A five-judge bench examined, and gave its opinion on March 25, 2004 that the law was unconstitutional as the subject matter was in the scope of the Union List, thus establishing a guiding principle in an issue relating to conflict between the Union and states.
In what has come to be called the Gujarat Assembly election matter, the presidential reference in 2002 was in regard to the Election Commission taking into account a number of factors in deciding to hold the state assembly election. The state government was unhappy, and the house was dissolved quickly. Though the exact questions posed were not answered by the court, the court analysed some of the relevant articles in detail. A five-judge bench concluded that the application of Article 324 and Article 174(1) were not interdependent in nature. The court gave its opinion that the Election Commission was obliged to conduct the election within six months, even when the assembly was dissolved in haste.
In the Natural Resources Allocation case or what is popularly called the 2G Spectrum reference, the presidential reference in 2012 was in the context of the judgment in the 2G Spectrum case that cancelled a number of 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. A five-judge bench of the supreme court disagreed that such a reference could not be maintained under Article 143 on the basis that it sought to overrule the judgement already given by the court. It said it could answer the reference to the extent it did not overrule its judgment. The court did not take up all the questions and confined its main opinion to the question whether auctions are the only method of disposal of natural resources. It opined that there was no constitutional requirement that auction is the only methodology of allocating resources, but If allocation is made to individuals for commercial exploitation, auction and maximisation of revenue is the rule. There could be deviation from the rule of auction only when the purpose is for social or welfare causes.
The presidential reference on the Punjab Termination of Agreement Act, 2004 involved a long-standing water dispute between Punjab, Haryana and Rajasthan, was examined by a five-judge bench. The main issue for consideration of the Supreme Court was the constitutional validity of the state Act which the state enacted to try and overturn a judicial decree. According to the Act, the state government of Punjab was not obliged to share water with another state for maximum utilization of natural resources. The court gave its opinion on November 10, 2016 that such an implementation was unconstitutional and invalid.
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