What President Murmu’s move seeking SC opinion on constitutional questions means
Murmu’s reference has sparked a renewed discussion on the delicate balance between the executive’s discretionary powers and the imperatives of timely governance
President Droupadi Murmu’s decision to seek the Supreme Court’s advisory opinion on critical constitutional questions marks a rare and significant moment in India’s constitutional jurisprudence. The reference, made under Article 143 of the Constitution (the Supreme Court’s advisory jurisdiction), seeks to clarify the legal framework surrounding the timelines and powers of the president and governors when deciding on state bills reserved for assent.
This development follows the Supreme Court’s April 8 judgment, which prescribed specific timelines within which the president and governors must act on such bills. Notably, vice-president Jagdeep Dhankhar criticised the judiciary for acting as a “super Parliament” in the wake of this judgment, which fixed timelines for the president to decide on state bills referred to by the governor for consent within three months.
Dhankhar described the extraordinary judicial power vested with the top court to do complete justice under Article 142 as a “nuclear missile” available to the judiciary 24/7 against democratic forces.
Murmu’s reference has sparked a renewed discussion on the delicate balance between the executive’s discretionary powers and the imperatives of timely governance within India’s federal framework, even as the ensuing questions raised by the president touch upon complex issues of federal balance, executive discretion and judicial review; areas that have remained contentious over decades.
The President’s role in the states’ legislative processes and core issues
India’s Constitution establishes a federal system, where states enjoy autonomy in legislating on matters enumerated in the State List (List II of the Seventh Schedule). Every bill passed by a state legislature must receive the assent of the governor before it becomes law (Article 200). The governor acts as the constitutional head of the state, performing a role analogous to that of the president at the Union level.
In certain circumstances, the governor refers the bill to the president for assent (proviso to Article 200). This occurs when the governor either believes the bill is against the Constitution or requires the president’s consideration. Once the bill reaches the president, they may give assent to the bill, or withhold assent, or return the bill (if it is not a money bill) for reconsideration by the state legislature. This power acts as a crucial check in the federal system, balancing the state legislature’s autonomy with the constitutional safeguard of Union oversight.
Murmu’s May 13 reference to the Supreme Court revolves around the question of whether there is a prescribed or reasonable timeline within which the president must act upon a bill sent by a governor for assent. This question arises in the wake of the court’s April verdict holding that if a governor withholds assent or reserves a bill for the president’s consideration, this must be done within three months of its presentation.
The court said that a governor must grant assent “forthwith” or within a month if a state legislature re-enacts an identical bill. The two-judge bench added that the president must decide within three months of receiving a bill from a governor, laying down such a timeline for the first time.
It asked that the president’s office convey reasons to the concerned state if there is any delay beyond this period. This verdict noted that the absence of a timeline for the governor and the president to decide on state bills created uncertainty and could potentially delay the enactment of laws, affecting governance. The issue before the court related to 10 bills that the Tamil Nadu government referred to the governor for assent.
The president now seeks clarity on whether the Constitution or law mandates any time frame for presidential assent to state bills, besides questioning if it was proper for a two-judge bench to interpret constitutional provisions when the Constitution requires such issues to be decided by a bench of minimum five judges. She also questions whether courts can impose timelines or procedures on governors and presidents exercising powers under Articles 200 and 201, and if the president must consult the Supreme Court under Article 143 when a bill is reserved for assent.
Murmu asks if judicial review can occur before a bill becomes law, and whether the Supreme Court can override the constitutional powers of the governor or the president under Article 142. The president asked whether a state law can be valid without the governor’s assent. Another question asked whether governors must strictly follow the advice of the council of ministers and if their discretion is subject to judicial review despite constitutional safeguards.
The nature and scope of Article 143
Article 143 of the Constitution empowers the president to seek the Supreme Court’s opinion on questions of law or fact of public importance. A similar power to make references was granted to the Federal Court of India under Section 213 of the Government of India Act, 1935. Under Article 143 of the Constitution, the president may refer a question to the Supreme Court if satisfied that it involves a matter of law or a fact of such public importance that it warrants the court’s opinion.
The Supreme Court’s advisory jurisdiction is limited to the specific questions referred by the president. It cannot go beyond the reference, as held in the Kerala Education Bill case (1957).
A legal issue already decided by the Supreme Court through its judicial authority cannot be brought before it again via a reference under Article 143. The court cannot sit in appeal over its prior judgments in its advisory capacity, as clarified in the Cauvery dispute reference (1992). The court may also decline to offer an opinion if the referred questions are deemed purely political or socio-economic and lack constitutional relevance, as in the M Ismail Faruqui reference (1995).
As for the binding nature of such advisory opinions, the court has consistently held that opinions rendered under Article 143(1) do not carry the force of law. While the court may later revisit and overturn its own decisions, advisory opinions remain non-binding, as affirmed in the 1965 reference on the powers and privileges of state legislatures.
This non-binding nature implies that the president or parliament may, theoretically, choose to disregard the court’s advisory opinion, although such a course may risk constitutional crisis and political controversy. Advisory references cannot be used to decide specific disputes between parties or settle legal controversies that require contentious adjudication with procedural safeguards and evidence.
Presidential references in India
Since independence, presidents have invoked Article 143 at least 14 times, seeking the Supreme Court’s advisory opinion on matters of law or fact of public importance. These references have played a pivotal role in shaping constitutional jurisprudence, resolving inter-institutional conflicts, and guiding policy during times of political uncertainty.
The first-ever presidential reference, in Delhi Laws Act (1951), laid down foundational principles on legislative delegation, affirming that while parliament may delegate powers for law implementation, it cannot abdicate its core legislative functions. Another landmark, the Kerala Education Bill reference (1958), harmonised fundamental rights with directive principles, reinforcing minority rights while upholding constitutional balance.
In the Berubari Union case (1960), the Supreme Court clarified that territorial cession to another country required a constitutional amendment under Article 368, not just a parliamentary law—an interpretation with significant foreign policy implications.
Similarly, in the Keshav Singh case (1965), the court resolved an extraordinary standoff between the Uttar Pradesh assembly and the high court, asserting judicial independence and placing limits on legislative contempt powers.
The judiciary’s institutional independence was again at the heart of the 1998 judges appointment reference, which clarified that the chief justice of India must act collectively with a collegium of judges and not unilaterally while recommending judicial appointments, reshaping the architecture of judicial appointments.
Other notable instances include the Cauvery Water Disputes reference (1992), which upheld federal principles and the rule of law by stating that a state cannot unilaterally reject a tribunal’s order. The 2002 Gujarat assembly reference, where the court analysed Article 174 in depth but refrained from issuing a conclusive opinion on the Election Commission of India’s powers versus the state government’s will.
The only reference declined by the court came in the 1993 Ayodhya dispute when it refused to answer whether a temple existed beneath the Babri Masjid, citing judicial propriety and ongoing litigation—a rare but significant assertion of the court’s discretionary boundary under Article 143.
From taxation conflicts (Sea Customs Act, 1962), to energy regulation disputes (Gujarat Gas Case), and attempts to prosecute political leaders through special courts (1979 reference), presidential references have served as constitutional safety valves. While the opinions rendered are not legally binding, their moral and institutional weight has often guided both parliament and the executive.
Together, these 14 references chronicle a unique aspect of India’s constitutional dialogue, one that combines judicial interpretation, executive discretion, and public accountability, and continues to evolve with the challenges of governance and democracy.
In the latest reference, President Murmu seeks clarity on questions touching upon executive discretion, judicial review, and the justiciability of presidential and gubernatorial acts. The president also questions the appropriateness of the Supreme Court using its extraordinary powers under Article 142 to “deem” bills assented to, raising profound constitutional questions about the separation of powers and judicial overreach.
The road ahead
The Supreme Court’s advisory jurisdiction balances the need for constitutional guidance with respect for the separation of powers. While the court’s opinions influence policy and legal interpretation, they do not directly bind the president, governors, or legislatures. This arrangement preserves executive autonomy while providing a mechanism for authoritative legal clarification.
The issues raised by Murmu’s Article 143 reference underscore the need for clearer constitutional and legislative frameworks governing the assent process for state bills. The Supreme Court’s advisory opinion will likely shape how the President and governors approach their assent powers and the timeliness of decisions. It may also influence the Parliament to consider legislative reforms to codify procedures and timelines, while reducing reliance on judicial intervention.
Simultaneously, the 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. Ultimately, this episode reflects India’s evolving constitutional democracy grappling with complex federal dynamics, judicial activism, and executive accountability.
