Context: Recently, the President of India Smt. Droupadi Murmu has made a reference to the Supreme Court under Article 143 of the Constitution on certain questions of law.
The current reference is a result of a recent Supreme Court judgment that had specified timelines for Governors and the President to act on Bills passed by State legislatures.
Relevance of the Topic: Prelims: Key facts about Presidential Reference.
Advisory jurisdiction of the Supreme Court under Article 143 is a relic of the Government of India Act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion.
Presidential Reference:
- As per Article 143, the President may refer any question of law or fact of public importance to the Supreme Court for its opinion. The President makes such a reference based on the advice of the Union council of ministers.
- Article 145 of the Constitution provides that any such reference shall be heard by a bench of minimum five judges.
- The Supreme Court may provide its opinion after such hearing as it thinks fit. It is not obligatory for the Supreme Court to render its opinion.
- The opinion is legally not binding on the President, and does not hold a precedential value for the courts to follow in subsequent cases. However, it carries a strong persuasive value and is usually followed by the executive and the courts.
The latest Presidential Reference:
- The present reference has raised 14 questions, primarily surrounding the interpretation of Articles 200 and 201, for the court’s opinion.
Supreme Court’s Judgment in Tamil Nadu Governor case (2025):
Time limit for the Governor:
SC has prescribed a time limit for the Governor to exercise his powers under Article 200.
- The governor has a maximum of one month to withhold the assent based on the aid and advice of the State Cabinet.
- The governor has a maximum period of three months to return the bill by specifying reasons, if the bill is withheld contrary to the advice of the Cabinet.
- The governor has a maximum period of three months to reserve the bill for the President's consideration against the advice of the Cabinet.
- The governor must grant assent to the bill re-passed by the state legislature under Article 200 within a maximum period of one month.
The court said that a governor must be a friend, guide and philosopher to the State, not a hindrance.
Time limit for the President
- The President is required to take a decision on the bills reserved for his consideration by the governor within a period of three months.
The SC noted that absence of timeline in Article 201 does not imply that the President can delay decisions indefinitely. It aims to prevent delays and ensure the efficient functioning of the legislative process.
Past instances of Presidential Reference:
There have been around 15 references made since 1950 before the current reference. Some of the landmark opinions from such references include-
- The first reference was made in the Delhi Laws Act case (1951) which laid down the contours of ‘delegated legislation’, through which the legislature could delegate legislative powers to the executive for effective implementation of any law.
- The reference in the Kerala Education Bill (1958) resulted in the court laying down the principle of harmonious construction between Fundamental Rights and Directive Principles of State Policy as well as interpretation of protection given to minority educational institutions under Article 30.
- In the Berubari case (1960), the court opined that ceding or acquisition of territory by India would need a constitutional amendment under Article 368.
- In the Keshav Singh case (1965), the court interpreted the powers and privileges of the legislature.
- In the Presidential poll case (1974), the court opined that Presidential elections should be held notwithstanding vacancies in the electoral college due to dissolution of State assemblies.
- The Special Courts Bill (1978) provided that the court may decline to answer a reference; that the questions referred must be specific and not vague; and that the court, while answering a reference, should not encroach upon the functions and privileges of Parliament.
- The Third Judges case reference (1998) laid down detailed guidelines for the collegium system with respect to the appointment of judges to the higher judiciary.
It is not obligatory for the Supreme Court to render its opinion. Out of all the references made till date, the court has declined to provide its opinion for only one reference in 1993 with respect to the Ram Janmabhoomi case.
The government had an option to seek review of the original judgement (by the Supreme Court, settling timelines for Governors and Presidents on Bills). Failing the review, the government could have filed a curative petition.
The Presidential Reference raises fundamental questions about the justiciability of executive discretion and the extent to which courts can intervene in the legislative assent process. Clarifying these boundaries will protect the constitutional balance between the executive, legislature, and judiciary.