Presidential Reference under Article 143

GS2 – Indian Polity

Context:

The President of India has recently sought the Supreme Court’s advisory opinion under Article 143, raising constitutional questions about the powers and discretion of Governors and the President in granting assent to state legislation.

Background and Legal Foundation:

• This mechanism evolved from Section 213 of the Government of India Act, 1935, which allowed the Governor-General to consult the Federal Court.
• Article 143(1): Permits the President to ask the Supreme Court for its opinion on significant legal or constitutional issues.
• Article 143(2): Pertains to pre-Constitution treaties or agreements, where the Supreme Court is obliged to respond.
• Article 145(3): Requires that such references be reviewed by a Constitution Bench of at least five judges.

Nature and Scope of Advisory Opinions:

• Not Binding: Though not enforceable, these opinions carry significant weight and are typically respected by the government and judiciary.
• Executive’s Initiative: The President acts on the Cabinet’s recommendation when making such a reference.
• Limited Usage: This provision has been invoked sparingly—only about 15 times since 1950—demonstrating its exceptional nature.

Scope and Limitations:

• Final Judgments Stand: The Court cannot override an established verdict through Article 143.
• Clarifications Permitted: It may, however, offer legal clarity or refine the understanding of a prior judgment.

Significance and Examples:

• Delhi Laws Act Case (1951): Clarified the legality of delegated legislation.
• Berubari Case (1960): Ruled that ceding Indian territory requires a constitutional amendment.
• Special Courts Bill (1978): Affirmed that vague or political questions could be declined.
• Third Judges Case (1998): Established the collegium system for judicial appointments.

Other Notable References:

• 1958 Kerala Education Bill: Interpreted Article 30 in balancing Fundamental Rights and Directive Principles.
• 1993 Ram Janmabhoomi Case / 1994 Ismail Faruqui Case: The Court declined to answer due to the sensitive and political nature of the questions.
• Natural Resources Allocation Case (2012): Clarified that auctions are not the sole method for allocating resources.

Concerns Over Current Reference (2025):

• Judicial Overreach Risk: A response may reopen settled constitutional positions.
• Precedent Dilution: Could set a pattern for politically motivated references.
• Impact on Legislative Autonomy: May undermine the constitutional role of state legislatures and Governors.
• Stability of Legal Doctrine: Could affect doctrinal consistency and constitutional jurisprudence.

Global Comparisons:

• Canada: Its Supreme Court offers advisory opinions on constitutional matters (e.g., 1998 Quebec Secession).
• United States: Advisory opinions are prohibited due to the principle of strict separation of powers (e.g., Muskrat v. United States, 1911).