President Invokes Consultative Jurisdiction under Article 143: Seeks Supreme Court’s Opinion on Governor’s Assent to Bills Controversy: KBS Sidhu

Follows Supreme Court’s April 2025 decision in the Tamil Nadu case, which imposed strict timelines on the President of India as well as the Governors for decision on Bills passed by Vidhan Sabhas.

By Karan Bir Singh Sidhu, retired IAS officer of the Punjab cadre and former Special Chief Secretary, Government of Punjab. He writes on constitutional law, federalism, public administration, and governance.

A Moment of Constitutional Reevaluation

President Droupadi Murmu’s decision to invoke Article 143 of the Indian Constitution on 13 May 2025 may mark a defining constitutional moment. By referring 14 weighty questions to the Supreme Court of India, she has opened the doors to a broader reflection on the roles, limitations, and accountability of Governors and the President vis-à-vis state legislatures and the judiciary. This unusual yet constitutionally sanctioned step follows a landmark Supreme Court judgment from April 2025 that imposed timelines on constitutional authorities for acting on State Bills—a move now under review for potential overreach.

Article 143: An Instrument of Advisory Power

Article 143 establishes the President’s power to seek the advisory opinion of the Supreme Court, often refrred to as the consultative jurisdiction of the President. Clause (1) allows for such a reference on questions of law or fact of public importance, while Clause (2) mandates the Apex Court’s opinion in matters involving interstate disputes as mentioned in Article 131. Though rooted in the colonial-era Government of India Act, 1935 (Section 213), this power has matured into a distinct constitutional instrument enabling preventive jurisprudence, avoiding multiplicity of litigation, especially between the States and the States and the Union of India.

The Legal Weight of Advisory Opinions

While the Supreme Court’s response under Article 143 is not binding on the President, its opinions carry substantial moral and jurisprudential weight. Past rulings, notably in the Ahmedabad St. Xavier’s College case, have declared that advisory opinions deserve “great weight,” despite their technically non-binding character. Judicial dicta have also evolved to require the President— effectively the Central Government— to offer cogent reasons if deviating from such advice—signalling a practical, if not legal, obligation to comply.

A History of Sparing Use: The Twelve Presidential References

Republic of India has seen remarkably restrained use of Article 143. In over seven decades, only twelve references had been made until now. This limited usage underscores the exceptional nature of the current reference, adding to its constitutional gravitas.

Punjab Water Agreements Law: When State Autonomy Clashed with Constitutional Boundaries

Among the most consequential references was the challenge to the Punjab Termination of Water Agreements Act, 2004. After deliberating for over 12 years, the Supreme Court unanimously (5–0) ruled in November 2016 that the Act was unconstitutional, holding that a state could not unilaterally terminate inter-state agreements or override decrees of the Supreme Court. The judgment stood as a firm affirmation of the sanctity of federal obligations and the authority of the judiciary over politically expedient legislation.

Since the opinion was ultimately advisory in nature, the contentious SYL Canal dispute between Punjab and Haryana remains unresolved and continues to pend before the Supreme Court of India, with the Union of India submitting that it is actively attempting to mediate a settlement between the litigating states.

The Ayodhya Reference: Limits of Historical Adjudication

The 1993 Ayodhya reference posed a particularly complex challenge—whether a Hindu structure, presumably the Ram Janmabhoomi Mandir, existed prior to the construction of the 16th-century Babri Masjid. The Supreme Court respectfully declined to answer and returned the reference to the President of India, with the majority holding that the question was unnecessary and incapable of resolution through the judicial methods available to the Apex Court. This episode underscored the judiciary’s cautious approach in refraining from wading into politically charged and historically speculative matters. Nevertheless, a Constitution Bench of the Supreme Court would, in due course, deliver its final verdict in November 2019, conclusively adjudicating the long-standing and divisive dispute in a manner widely regarded as fair, just, and equitable.

Other Pivotal Precedents: From Delhi Laws to 2G

The first presidential reference in the Delhi Laws case (1951) defined the limits of delegated legislation. Subsequent references in the Keshav Singh legislative privilege case, the Gujarat elections delay (2002), and the 2G spectrum case have all provided interpretive guidance in uncharted constitutional waters. Each has added layers to our understanding of separation of powers and judicial oversight and supervision.

The 2025 Reference: Timelines, Discretion, and Judicial Oversight

The immediate context of the 2025 reference is the Supreme Court’s April verdict requiring Governors and the President to act within reasonable timelines on bills presented by state legislatures. By introducing the doctrine of “deemed assent,” the Apex Court sought to curb indefinite delays that undermine legislative sovereignty. However, this has now prompted a constitutional cross-check: Can the judiciary impose such procedural timelines on high constitutional functionaries?

Among the 14 questions referred are crucial ones:

• Is a Governor bound by the advice of the Council of Ministers?

• Can Governors exercise discretion outside what is explicitly allowed?

• Are their decisions justiciable?

• Can the judiciary prescribe timelines in the absence of express constitutional directives?

These questions strike at the core of the relationship between law and discretion, accountability and immunity (for detailed questions, refer to the screenshots at the end of this article).

Political Undertones: A Battle Beyond the Constitutional Bench

The reference carries unmistakable political overtones. It comes just a day before the new Chief Justice B.R. Gavai assumed office and amidst public criticism by Vice-President Jagdeep Dhankhar, who accused the Supreme Court of “judicial overreach.” These developments suggest that the legal questions at hand are deeply intertwined with ongoing debates about institutional supremacy and federal tension.

Governors, State Autonomy, and the Limits of Existing Precedent

This episode spotlights the growing friction between centrally appointed Governors and opposition-ruled State Governments. Tamil Nadu, Kerala, West Bengal, and Punjab have all endured protracted stand-offs over gubernatorial delays in assenting to or returning legislation. By seeking the Supreme Court’s advice, the President’s reference could either reaffirm Governors as neutral umpires or substantially narrow their discretionary latitude.

Notably, earlier Supreme Court rulings on the National Capital Territory of Delhi offer only limited guidance. Delhi functions as a quasi-state: despite having an elected government, it retains key Union-Territory features, with the Lieutenant-Governor, a Central Government appointee, exercising control over crucial subjects—such as public order and policing—that, in full-fledged states, fall squarely within the jurisdiction of the State Government. Consequently, the constitutional dynamics in Delhi differ significantly from those in the states now contesting gubernatorial delays, underscoring the need for fresh judicial clarity.

Supreme Court’s Potential Role in Addressing Speaker Delays in Anti-Defection Disqualification Cases

Another glaring instance of notorious delays—and at times, complete non-exercise of jurisdiction—is the conduct of Speakers of State Vidhan Sabhas. In several cases, matters and petitions relating to the disqualification of MLAs for alleged violations of the anti-defection provisions under the Constitution remain undecided for inordinate periods. Such prolonged inaction not only subverts the intent of the Tenth Schedule but also erodes public confidence in the impartial functioning of constitutional offices.

While the Supreme Court’s opinion in this reference will not carry binding force, its interpretation will reverberate well beyond the confines of the courtroom. It has the potential to shape constitutional conventions, recalibrate Centre-State dynamics, and influence the conduct of both executive and legislative authorities. Most importantly, it may help define whether the judiciary can serve as a legitimate check on deliberate constitutional stalling—or whether such oversight risks being viewed as judicial encroachment.

In summary: A Point of Inflexion for Federalism and Constitutional Clarity

We can only hope that the present presidential reference is expeditiously decided—unlike the Punjab Termination of Water Agreements Act case, which remained pending before the Supreme Court for over a decade due to a variety of legal and political complexities. After all, what could be a higher constitutional priority for the Apex Court than a set of fourteen questions of profound importance—questions that have the potential not only to illuminate but also to recalibrate the very path of Indian federalism, as the Republic matures and the Constitution continues to blossom?

President Murmu’s recourse to Article 143 is thus far more than a routine procedural gesture—it is a plea for interpretive clarity in the face of growing constitutional ambiguity. The reference brings to the fore enduring tensions between the letter and the spirit of the Constitution, between political expediency and institutional propriety. In an era where India's democratic architecture is being tested by complexity, contestation, and confrontation, this advisory opinion may well help forge a new constitutional equilibrium—one in which roles are redefined, powers recalibrated, and accountability reaffirmed.

This is not merely a matter of legal interpretation; it is a moment of deep constitutional introspection. And how the Supreme Court responds will echo through the annals of India's democratic journey, shaping the contours of governance and federalism for generations to come.