Recently, a five-judge Constitution Bench of the Supreme Court delivered an advisory opinion in the 16th Presidential Reference since the Court’s establishment.
The President referred 14 questions, but the Court answered 11
- 3 were declared irrelevant because they dealt with issues unrelated to the functional nature of the reference such as procedural technicalities or broader constitutional interpretations not arising from the present controversy.
Background
- State of Tamil Nadu vs The Governor of Tamil Nadu case: On April 8, 2025, the Supreme Court ruled that the President must decide within three months on Bills reserved for her consideration by Governors.
- There is no Constitutional provision regarding the time limit for President’s Consideration on State’s Bill.
- Impact on Governor’s Role: The verdict nullified Tamil Nadu Governor R N Ravi’s decision to withhold assent to 10 Bills, reinforcing that indefinite delays in legislative assent are unconstitutional.
- Extension to Presidential Office: In a significant move, the SC extended the three-month timeline to the President, allowing states to seek a writ of mandamus if no decision is made, raising questions about judicial scrutiny of the President’s discretionary powers.
- Reference under Article 143(1): President Droupadi Murmu invoked Article 143(1) to seek the Supreme Court’s advice after controversy arose over delays by Governors and the President in acting on state Bills.
- The President referred 14 questions related to constitutional processes and discretionary roles, especially questioning whether timelines can be imposed in the absence of explicit constitutional provisions.
Why the Supreme Court Decided to Answer the Presidential Reference
- Constitutional Duty to Protect and Nurture the Constitution: The Court held that it has both the institutional capacity and constitutional obligation to respond when the highest constitutional authority seeks clarity on questions affecting constitutional functioning.
- Part of an Ongoing Constitutional Dialogue: The advisory jurisdiction under Article 143 is a form of constitutional dialogue between the Executive and Judiciary, and the Court cannot prematurely close this channel.
- Need to Remove Confusion Around Articles 200 & 201: The Court observed that uncertainty around the powers of the Governor and President in granting assent would impede smooth constitutional functioning, making an authoritative clarification necessary.
- President’s Satisfaction Creates Valid Basis for Reference: The Court accepted that the President had reached substantial satisfaction that these were important legal questions which have arisen or were likely to arise, justifying a reference under Article 143(1).
- Institutional Responsibility Toward the Highest Constitutional Office: Given that the reference came from the President (the highest constitutional functionary) the Court considered it an institutional responsibility to answer rather than decline.
- Duty to “Iron Out Constitutional Creases”: When doubts arise about constitutional roles or institutional powers, the SC emphasized that it cannot shirk its responsibility to clarify constitutional positions and ensure smooth governance.
- Article 143 Entrusts the Court With This Advisory Function: The Court reiterated that Article 143 explicitly empowers and entrusts it with this advisory jurisdiction, and fulfilling it is part of serving the Constitution and the people.
- Judicial Propriety and Institutional Integrity Demand a Response: Refusing to answer would undermine the Court’s own institutional integrity. Therefore, propriety required it to respond to the reference meaningfully.
- Allegations of Mala Fide Were Rejected as Illogical: The Court rejected claims that the reference was an “appeal in disguise” or driven by mala fide motives, stating these accusations were a “leap in logic” and unbecoming against the President.
- Maintainability Challenge Not Allowed Under Existing Precedent: Citing the Natural Resources Allocation ruling, the Court held that a challenge to the maintainability of a Presidential reference on mala fide grounds is impermissible, removing that objection completely.
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Key Constitutional Provisions
- About Presidential Reference
- A Presidential Reference is a mechanism under Article 143 of the Indian Constitution.
- It empowers the President of India to seek the Supreme Court’s advisory opinion on questions of law or fact that are of public importance.
- Constitutional Basis
- Article 143(1) allows the President to refer any legal or factual question of public importance to the Supreme Court for opinion.
- Article 143(2): Also enables reference regarding disputes arising out of pre-Constitution treaties or agreements.
- Article 145 mandates that such a reference must be heard by a minimum bench of five judges.
- The opinion is advisory in nature – it is not binding on the President and does not carry precedential value.
- However, it holds significant persuasive weight and is usually followed by both the executive and lower courts.
- Historical Context: The provision has its roots in the Government of India Act, 1935, which allowed the Governor-General to refer legal questions to the Federal Court.
- Key Past References
- Kerala Education Bill (1958): Balanced Fundamental Rights with Directive Principles; protected minority education rights under Article 30.
- Berubari case (1960): Ceding Indian territory requires a constitutional amendment under Article 368.
- Keshav Singh case (1965): Interpreted legislature’s privileges.
- Third Judges Case (1998): Defined judicial collegium process.
Governor’s Powers with Bills
- Article 200: Governor’s Role in Assenting to Bills
- When a Bill is passed by the Legislative Assembly of a State, it is presented to the Governor, who has the following options:
- Give Assent: The Governor may approve the Bill, making it a law.
- Withhold Assent: The Governor may refuse to approve the Bill, effectively rejecting it.
- Return for Reconsideration:
- The Governor may send the Bill back to the Legislature with suggested modifications. (except when re-passed by both the Houses or it’s a money bill).
- If the Legislature passes the Bill again without any changes, the Governor is bound to give assent.
- Refer to the President: The Governor may forward the Bill to the President for further consideration.
- Article 201: President’s Role in Reserved Bills
- When the Governor reserves a Bill for the President’s consideration, the President has the following options:
- Give Assent: The Bill becomes law.
- Withhold Assent: The Bill is effectively rejected.
- Return for Reconsideration:
- The President may send the Bill back to the State Legislature for amendments.
- If the Legislature passes the Bill again, the President is not obligated to grant assent.
Circumstances for Reserving a Bill for the President
- The Governor is required to reserve a Bill if: It threatens the position of the State High Court.
- Additionally, the Governor may choose to reserve a Bill if it:
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- Violates any provision of the Constitution.
- Conflicts with the Directive Principles of State Policy (DPSP).
- Goes against the broader national interest.
- Has significant national importance.
- Deals with compulsory acquisition of property under Article 31A of the Constitution.
Discretionary Powers of the Governor
- Article 163: Provides discretionary powers in specific situations, such as:
- Appointing a Chief Minister when no party has a clear majority.
- Acting in times of a no-confidence motion.
- Article 356: Allows the Governor to recommend President’s Rule if the state government fails to function as per the Constitution.
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Supreme Court’s Stand on 14 Key Questions
1. Constitutional Options of the Governor under Article 200: The Governor has only three constitutionally sanctioned options:
- Assent to the Bill,
- Withhold assent and return the Bill (except Money Bills) with comments,
- Reserve the Bill for the President’s consideration under Article 201.
- The Court stressed that the Governor cannot invent new options such as “sitting indefinitely” or “maintaining silence.”
2. Is the Governor bound by the Council of Ministers’ advice?
- While the Governor generally acts on ministerial advice, Article 200 grants limited discretionary space.
- However, this discretion cannot be used as a political veto nor to defeat the legislative process. Excessive delays distort the constitutional scheme.
3. Is constitutional discretion under Articles 200 & 201 justiciable?
- The Court held: The content or merits of the Governor/President’s decision are not justiciable.
Mandamus – “We command.”
- Use: It commands a public authority to perform a public or statutory duty.
- Purpose of Mandamus: This writ is issued when a lower court, a government officer, corporation, or any public authority has failed or refused to fulfill its duty.
- Restrictions on Mandamus: Not issued against private individuals, for non-statutory departmental instructions, discretionary duties, contractual obligations, the President, State Governors, or Chief Justice acting judicially.
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- But indefinite inaction triggers limited judicial intervention. This balances constitutional autonomy with accountability.
- In glaring circumstances of indefinite inaction, the court has a limited power to issue a mandamus to the Governor to decide within a reasonable time period.
4. Is Article 361 an absolute bar to judicial review in relation to the actions of a Governor under Article 200?
Article 361 of the Constitution
- It states that the President and the Governors shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done by him in the exercise and performance of those powers and duties.
- No criminal proceedings shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office.
- No process for the arrest or imprisonment of the President, or the Governor of a State, shall be issued from any court during his term of office.
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- Article 361 is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings.
5. Can timelines be imposed under Article 200?
- The Constitution is intentionally silent on timelines.
- Courts cannot fill this silence by prescribing fixed deadlines.
- However, “reasonable time” remains a constitutional expectation, and courts may intervene if that expectation is violated.
6. Is exercise of constitutional discretion by the President under Article 201 justiciable?
- For the same reasoning as held with respect to the Governor, the President’s assent too is justiciable. not
7. Can the President be bound to timelines while exercising power under Article 201?
- For the same reasons as indicated in the context of the Governor, the President, too, cannot be bound by judicially prescribed timelines.
8. Is the President required to seek SC’s opinion whenever a Bill is reserved?
- No. The President’s subjective satisfaction is sufficient. Seeking SC advice under Article 143 is entirely discretionary.
9. Are decisions of the Governor and President under Article 200 and Article 201 justiciable at a stage anterior into the law coming into force?
- The decisions of the Governor and President under Articles 200 and 201 are not justiciable at a stage anterior into the law coming into force.
- It is impermissible for courts to undertake judi-cial adjudication over the contents of a Bill before it becomes law.
10. Can the exercise of constitutional powers and the orders of/by the be President/Governor substituted in any manner under Article 142?
Article 142 – Power of the Supreme Court to Do “Complete Justice”
- Allows the SC to pass any decree or order necessary for complete justice in a case before it.
- Examples: Compensatory orders, Structural directions & Relief beyond statutory remedies.
- Limitations:
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- Cannot override explicit provisions of the Constitution.
- Cannot be used to create new constitutional mechanisms (e.g., “deemed assent”).
- Cannot substitute the President/Governor’s constitutional roles.
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- The exercise of constitutional powers and the orders of the President/Governor cannot be substituted in any manner under Article 142 nor does it allow for the concept of ‘deemed assent’ of Bills.
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?
- There is no question of a law made by a State legislature coming into force without assent of the Governor under Article 200.
Article 131 – Original Jurisdiction of the Supreme Court
- SC has exclusive jurisdiction over Centre–State and inter-State disputes involving: Legal rights, Constitutional interpretation & Executive powers.
- Examples: A State suing the Union (or vice versa) or A dispute between two States.
- Purpose: Prevents political disputes from derailing the federal structure by ensuring a judicial forum for resolution.
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Questions Not Answered
1. In view of the provisons to Article 145(3), is it not mandatory for any Bench of the court to first decide whether a case involves substantial questions of law and has to be referred to a Bench of minimum five judges?
- Returns unanswered. Irrelevant to this reference.
2. Do the powers of the Supreme Court under Article 142 of the Constitution limited to matters of procedural law?
- Not possible to answer in a definitive manner. Scope of Article 142 answered as a part of earlier question.
3. Does the Constitution bar the Supreme Court from resolving Centre-States disputes except by way of a suit under Article 131?
- Irrelevant to the functional nature of the reference. Hence, returned unanswered.
Implications of the Recent SC Advisory
- Strengthening of Federalism & Legislative Supremacy: The advisory restores the authority of State legislatures by clarifying that Governors and the President cannot stall Bills indefinitely.
- This prevents executive obstruction from undermining elected legislative bodies.
- Clear Limits on Constitutional Discretion: While discretion under Articles 200 and 201 remains, the Court held that discretion cannot become inaction.
- “Maintaining silence” is now constitutionally impermissible, ensuring decisions must be made within a reasonable time.
- Judicial Accountability Without Judicial Overreach: The Court refused to impose fixed timelines or create ‘deemed assent,’ avoiding judicial legislation.
- However, it empowered itself to issue limited mandamus in cases of prolonged, unexplained inaction, ensuring accountability.
- Clarification on Article 361 Immunity: The advisory draws a sharp line between personal immunity of constitutional heads and review of their decisions.
- Their conduct is shielded, but their constitutional inaction is not, enhancing procedural accountability.
Gubernatorial Delay
- It refers to the unreasonable, prolonged, or politically motivated delay by a Governor in taking action on Bills passed by a State Legislature under Article 200.
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- Reduced Centre–State Political Conflict: By eliminating the scope for indefinite gubernatorial delay.
- The judgment addresses frequent political tensions in Opposition-ruled States, reinforcing cooperative federalism and reducing friction between State governments and Governors.
- Establishment of a Constitutional Convention of “Reasonable Time”: Though the Constitution is silent on timelines, the SC created a strong constitutional expectation that Governors/President must act expeditiously.
- This now forms an evolving constitutional convention guiding future practice.
- Long-Term Clarity on Assent Procedures & Gubernatorial Reform: The ruling provides durable clarity on Articles 200–201, strengthens calls for reforms (as recommended by the Punchhi Commission), and sets guardrails for the future functioning of Governors and the President in the legislative process.
About Judicial Overreach
- It refers to the situation where the judiciary oversteps its constitutionally assigned boundaries, intruding into the domain of the legislature or executive.
- It occurs when courts issue rulings that amount to legislation, policy formulation, or administrative execution, areas reserved for the other two organs of the State.
- It is distinct from judicial activism, which operates within constitutional boundaries to fill governance gaps.
| “Judicial Activism is legitimate; Judicial Overreach is an abuse of judicial power.” — Justice A.S. Anand |
Judicial Activism vs Judicial Overreach
| Aspect |
Judicial Activism |
Judicial Overreach |
| Definition |
Legitimate exercise of judicial power to uphold rights, ensure accountability, or fill a legal vacuum within constitutional limits. |
When judiciary crosses constitutional boundaries and intrudes into legislative or executive domains. |
| Nature of Action |
Corrective and rights-expansive. |
Invasive and substitutive of elected branches. |
| Constitutional Backing |
Rooted in Articles 32, 226, and 141; aligned with the Constitution’s spirit. |
Lacks explicit mandate; violates principles of separation of powers. |
| Examples |
- Vishaka v. State of Rajasthan (1997) – SC framed guidelines for sexual harassment in absence of law.
- Hussainara Khatoon – Right to legal aid.
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- NJAC Case (2015) – SC invalidated 99th Amendment passed by Parliament.
- TN Bills Verdict (2025) – SC imposed timeline on President’s assent.
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| Judicial Commentary |
Called a “spur and a catalyst” to responsive governance (Justice Bhagwati). |
Called “judicial adventurism” when it substitutes legislature/executive (Justice A.S. Anand). |
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21 Nov 2025
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