Presidential Reference under Article 143 | 20 May 2025

Source: TH 

Why in News? 

The President has invoked Article 143 of the Indian Constitution to refer a set of 14 constitutional questions to the Supreme Court (SC) for its advisory opinion.  

• This move comes after a recent SC judgement which invoked Article 142 in the State of Tamil Nadu v The Governor of Tamil Nadu Case, 2023 imposing timelines on Governors and the President to act on Bills passed by state legislatures.  
• The reference raises 14 key questions, primarily concerning Articles 200 and 201, and the justiciability of executive actions before a Bill becomes law. 

What is Article 143 of the Indian Constitution? 

• About: Article 143 (Advisory jurisdiction) empowers the President of India to seek the SC’s advisory opinion on any question of law or fact that is of public importance and is likely to arise or has already arisen.  
  • This provision establishes the SC’s advisory jurisdiction, which is exclusive to the President. 
• Types of Questions Referred: 
  • Article 143 (1): The President may refer any question of law or fact of public importance which has arisen or which is likely to arise. Here, the Supreme Court may tender or may refuse to tender its opinion to the president. 
    • E.g., the Supreme court has declined to provide its opinion in 1993 with respect to the Ram Janmabhoomi case. 
  • Article 143(2): It allows the President to refer disputes arising from out of any pre-constitution treaty, agreement, covenant, sanad or other similar instruments. The SC must tender its opinion to the President. 
• Nature of the Advise: In both the cases, the opinion expressed by the SC is only advisory and not a judicial pronouncement. 
  • Hence, it is not binding on the president; she may follow or may not follow the opinion.  
  • However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it. 

What are the Key Facts Regarding the Presidential Reference? 

• About: Article 143 gives the President the power to refer any question of law or fact of public importance to the SC for its opinion, based on the Union Council of Ministers' advice. 
  • Article 145 (3) requires such references to be heard by a bench of at least five judges. 
• Historical Context: Advisory jurisdiction under Article 143 is derived from the Government of India Act, 1935, which allowed the Governor-General to refer legal questions to the federal court. 
  • The Canadian Constitution allows its SC to provide legal opinions, while the US SC refrains from giving advisory opinions to uphold a strict separation of powers. 
• Past Instances of Such References: There have been about 15 Presidential references to the Supreme Court under Article 143. Some landmark cases include: 
  • Delhi Laws Act case (1951): Defined the scope of delegated legislation. 
  • Kerala Education Bill (1958): Harmonized Fundamental Rights with Directive Principles. 
  • Berubari case (1960): Held that territorial cession requires a constitutional amendment. 
  • Keshav Singh case (1965): Explained legislative privileges. 
  • Presidential poll case (1974): Allowed elections despite vacancies in State Assemblies. 
  • Third Judges case (1998): Established the Collegium system for judicial appointments. 
• Key Issues in Current Reference: It raises issues about whether courts can impose timelines on President and Governors not explicitly stated in the Constitution (especially under Articles 200 and 201). 
  • It also questions the extent of the SC’s power under Article 142 (complete justice provision). 
• Overturning Power through Advisory Reference: According to the 1991 Cauvery Water Disputes Tribunal opinion, Article 143 cannot be used to review or reverse settled judicial decisions. 
  • However, the government may still seek review or curative petitions to challenge the State of Tamil Nadu v The Governor of Tamil Nadu Case, 2023 verdict. 

What is the Significance of the Presidential Reference System? 

• Constitutional Interpretation of Roles: It can clarify the constitutional roles of the President and Governors, and whether non-time-bound executive actions can be subject to judicial oversight. 
• Reaffirmation of Democratic Structure: It offers a chance to redefine the balance of power among the legislature, executive, and judiciary, ensuring constitutional order by preventing overreach. 
• Procedural Certainty: It resolves procedural uncertainties in intergovernmental matters and may help establish guidelines for resolving institutional friction in future. 
• Smooth Federal Functioning: In a federal structure, this reference helps define jurisdictional boundaries between the Centre and States, promoting cooperative federalism through a clear legal framework for dispute resolution. 

What are Challenges in the Presidential Reference System? 

• Non-Binding Nature: The Supreme Court’s Article 143 advice is not legally binding on the President, limiting its practical impact and raising doubts about its effectiveness. 
• Potential Politicization: The reference risks political misuse, especially when the ruling government seeks to validate controversial decisions or question adverse rulings, potentially compromising judicial neutrality and involving the judiciary in political disputes. 
• Unclear Threshold for Referral: The Constitution lacks a clear standard for what constitutes a "question of law or fact of public importance," granting the executive broad discretion that may result in references lacking true constitutional significance. 
• Institutional Tensions: Referrals often arise from judiciary-executive disputes, potentially heightening tensions and undermining judicial independence, especially when revisiting settled judgments. 
• No Timeline for Response: The Constitution sets no time limit for the Supreme Court to respond to a reference, risking delays in urgent matters that hinder governance and policy clarity. 

Conclusion 

The presidential reference under Article 143 marks a crucial constitutional development. It seeks to clarify the limits of judicial intervention, the scope of Article 142, and the justiciability of executive actions, thereby shaping the separation of powers and reinforcing India’s federal democratic structure through greater constitutional clarity.