The Hindu: Published on 21st May 2025:
Why in News?
President Droupadi Murmu has referred a set of 14 legal questions to the Supreme Court under Article 143 of the Constitution. These questions arise from a recent Supreme Court judgment that fixed timelines for Governors and the President to act on State Bills and made their actions subject to judicial review. The government now seeks clarity on the limits of judicial powers and the executive's discretion under the Constitution.
What is a Presidential Reference?
A Presidential Reference is a formal constitutional mechanism where the President of India can seek the opinion of the Supreme Court on any important question of law or fact. This is done under Article 143. The Supreme Court’s response is not binding, but carries strong persuasive value and is usually followed.
The President makes the reference based on the advice of the Council of Ministers. The Supreme Court is not bound to give its opinion and can decline to do so.
What Does Article 143 State?
Article 143 empowers the President to refer any matter of public importance involving a legal or factual question to the Supreme Court for its opinion. The Court hears such references with a bench of at least five judges. While the opinion is not enforceable in law, it is treated with high regard by both the government and the courts.
Do Other Countries Have Similar Provisions?
In Canada, the Supreme Court has an advisory jurisdiction, and governments can refer legal questions to the court, which then provides opinions.
In contrast, the United States Supreme Court has no such provision. It does not offer advisory opinions as doing so would violate the doctrine of separation of powers.
India's provision under Article 143 is inherited from the Government of India Act, 1935, where the Governor-General could refer questions to the federal court.
What is the Current Reference About?
The current reference is a response to a Supreme Court judgment that set deadlines for the President and Governors to decide on Bills passed by State legislatures. It also ruled that such decisions can be reviewed by courts.
The Union government has raised 14 questions, mainly seeking clarity on:
Whether courts can set timelines not explicitly mentioned in the Constitution.
Whether the Governor’s and President’s decisions on Bills can be challenged in court before a Bill becomes law.
What are the limits of Supreme Court powers under Article 142 when it comes to ensuring justice in such legislative matters?
These questions arise amidst ongoing tensions between the Centre and several Opposition-ruled State governments over the delay or inaction by Governors on State Bills.
Is the Supreme Court Bound to Answer?
No. The Supreme Court is not obligated to respond to a Presidential Reference. It has the discretion to decline if the questions are vague, politically sensitive, or encroach upon the roles of other branches of government.
An example of such a refusal was in 1993, when the court declined to respond to the Ram Janmabhoomi reference.
What are the Historical Precedents?
Since 1950, there have been around 15 Presidential references. Some notable ones include:
The Delhi Laws Act case (1951), which defined delegated legislation.
The Kerala Education Bill (1958), which laid down the balance between Fundamental Rights and Directive Principles.
The Berubari case (1960), which clarified that ceding territory requires a constitutional amendment.
The Special Courts Bill (1978), where the court held that it can refuse a reference if the questions are vague or encroach on Parliament’s powers.
The Third Judges Case (1998), which shaped the judicial appointments system through the collegium.
What Could Be the Impact of This Reference?
The outcome of this reference could have major constitutional and political implications:
It may clarify whether courts can control the pace at which Governors and the President act on Bills.
It could resolve the tension between the judiciary and executive, especially in the context of federal relations.
It may establish boundaries for the Supreme Court's power under Article 142.
It might reinforce or reshape the role of Governors and State autonomy.
Conclusion:
This Presidential Reference comes at a crucial moment in Indian constitutional history. While the opinion of the court is advisory, it may set the tone for future interaction between the judiciary, executive, and legislature. It could also be a decisive moment for federalism, judicial accountability, and constitutional interpretation in India.
