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Supreme Court’s Opinion on a Presidential Reference
Context: On July 22, 2025, the Supreme Court of India issued notices to the Union Government and all States following a Presidential Reference under Article 143.
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- The court sought its view on whether the President and Governors can be judicially compelled to act within legally prescribed timelines regarding State Bills passed by legislatures.
- A Constitution Bench led by CJI B.R. Gavai, alongside Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar, indicated that detailed hearings will begin mid‑August, with the schedule to be finalised on July 29.
Why was the Presidential Reference invoked?
- The Reference originated from a 14‑point submission by President Droupadi Murmu, following the Supreme Court’s April 8 ruling by Justices J.B. Pardiwala and R. Mahadevan.
- The case was initiated via a petition by Tamil Nadu, challenging Governor R.N. Ravi’s continued delay in assenting to ten Bills, which he reserved for Presidential review.
- The April judgment declared such inaction illegal, marking the first time enforceable timelines were imposed on Governors and the President.
What is the scope of the Advisory Jurisdiction of the Supreme Court?
- Under Article 143(1), the Supreme Court holds advisory jurisdiction, allowing it to offer opinions on questions of law or fact even when not tied to active litigation.
- Originating from Section 213 of the Government of India Act, 1935, this power is invoked when the President deems an issue of public importance demands judicial insight.
- Since Independence, this mechanism has been used around 14 times.
- The Court is strictly bound to the exact scope of the Presidential Questions.
- To uphold checks and balances, Article 145(3) mandates that such References be heard by a five‑judge bench.
Can the Supreme Court decline to answer a Presidential Reference?
- Article 143 uses the word “may”, giving the Court discretion to refuse a Reference, provided it records reasons (In Re The Special Courts Bill, 1978; Dr. M. Ismail Faruqui v. Union of India, 1994).
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Declinations have occurred before:
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- 1993: In the Ayodhya‑Babri Masjid Reference, Justices Ahmadi and Bharucha refused due to pending civil litigation and concerns over secularism.
- 1982: A Reference on J&K resettlement law was refused as the law got enacted before the opinion could be delivered.
Are advisory opinions binding on courts?
- Under Article 141, only judgments from adjudicatory jurisdiction form binding law.
- The Court itself clarified in St. Xavier’s College v. Gujarat (1974) that advisory opinions serve purely persuasive value. However, at times, such opinions have been treated as authoritative, as in:
- Vasantlal Sanjanwala v. Bombay (1961): cited a 1951 advisory.
- R.K. Garg v. Union of India (1981): Justice Bhagwati treated it as binding.
- In In Re: Cauvery Water Disputes Tribunal (1991), the Court noted advisory judgments deserve “due weight and respect” and are “normally followed,” although it deferred on their binding character.
- Thus, any opinion from the July 22 Reference would remain persuasive, not binding—leaving the April 8 ruling intact as the preeminent adjudicatory authority.
Could this Reference be used to overturn the April 8 judgment?
- Article 143 cannot serve as a backdoor to review or reverse a settled Supreme Court decision.
- The Court emphasised in the Cauvery opinion that Article 143 is not a substitute for review or curative petitions. The legitimate method to challenge any Supreme Court verdict remains the review/curative process.
- That said, the Court in Natural Resources Allocation (2012) recognised its authority under Article 143 to refine, clarify, or expand the legal principles of prior judgments if the fundamental ratio isn’t disturbed.
- Similarly, a 1998 Reference modified the collegium appointments system without invalidating the earlier verdict.
- Thus, while the April 8 judgment stands firm, the Reference may fine‑tune its legal interpretations or procedural clarifications.
How does this affect related State‑level petitions?
- Kerala and Punjab also filed similar petitions. Kerala has requested withdrawal, arguing the April 8 judgment already addressed the issue.
- The Union Government, however, opposes Kerala’s withdrawal, maintaining their case is distinct.
- The Supreme Court’s forthcoming advisory opinion is likely to influence the persuasive authority in these pending petitions.
