Presidential Reference

Mains Syllabus : GS II - Separation of powers between various organs dispute redressal mechanisms and institutions; Structure, organization and functioning of the Executive and the Judiciary.

Why in the News?

Recently President Droupadi Murmu has invoked the Supreme Court’s advisory jurisdiction on whether timelines could be set for the President and Governors to act on Bills passed by state Assemblies.

What is the Presidential reference?

• Article 143 - Under this Article, the President may refer a “question of law or fact” to the Supreme Court for its opinion.
• It is part of the Supreme Court's advisory jurisdiction, exclusively dedicated to the President of India.
• Article 145(3) - It requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion.
• Non-Adversarial Nature - It is consultative, not a dispute between parties — focused on advice rather than judgment.
• Discretion of Supreme Court – Under article 143(2) of Constitution of India, the Court is under an obligation to advise the President on issues relating to matters mentioned under the proviso of article 131.

Article 131 establishes the Supreme Court's original jurisdiction on legal disputes, particularly those between the Union government and states, or between states themselves.

• The Supreme Court may also decline to give opinion on the references.
• In Ayodhya case of 1992 , Supreme Court declined to give an opinion, stating it was not a question of law.
• No binding on President- The advises given by the supreme courts is not binding on the President.
• Advisory but Influential - Though opinion is not legally binding but is treated with high moral and legal respect.
• Exclusion of Settled Questions - The President cannot refer matters that have been conclusively resolved by the Supreme Court in its adjudicatory role.

What were previous usages of  presidential references?

• First Usage - In 1951, India’s first President Rajendra Prasad made the first reference to the Supreme Court in relation to provisions of Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and Part C of the States (Laws) Act of 1950.
• The questions on which the opinion was sought related to delegation of legislative powers to the executive.
• Rights of Minority Institutions - In 1958, the Supreme Court answered a reference on certain provisions of Kerala Education Bill, 1957, particularly whether the provisions of the proposed law infringed upon the rights of minority institutions.
• Berubari Union Case – In 1961, the President sought advice on the implementation of an agreement made by India and Pakistan over transfer of a portion of Indian territory (Berubari Union) to then East Pakistan.
• Interpretation of Article 289 - In 1963, the Supreme Court answered a reference on the scope and interpretation of Article 289 of the Constitution, relating to the immunity of states from Union taxation.
• 2G Case - The President sought clarity on various matters such as permissible methods of allocating natural resources like spectrum and the extent of judicial review of policy decisions.

What are the significances of Presidential references?

• Constitutional Clarity - Helps the President seek the Supreme Court’s opinion on complex legal or constitutional questions.
• Prevents Legal Uncertainty - Used to avoid constitutional crises or confusion in interpreting laws before implementation.
• Strengthens Rule of Law -Shows that the executive values and respects the judiciary’s role in governance.
• Bridges Executive and Judiciary - Facilitates coordination between the Executive and the Judiciary within a democratic framework.
• Guides Government Action -Helps the government take constitutionally sound decisions, especially on sensitive national issues.
• Protects Constitutional Morality - Reinforces the President’s role as a constitutional head, upholding neutrality and legality.

What are issues associated with the Presidential reference?

• Use as Appellate Mechanism – Often advisory jurisdiction of the Supreme Court is converted into appellate or review jurisdiction, where the court is made to advice on issues already decided by it.
• Limitation on Supreme Court - The court cannot check the validity and truthfulness of the facts so mentioned in the reference.
• The court under a reference application cannot go beyond the scope of issues referred to the court, i.e. the court cannot inquire about the matter which is not mentioned in the reference.
• Politicization Risk – The provision may be misused to legitimize political or controversial actions.
• The Ayodhya Reference (1993) attempted to involve judiciary in a religious/political matter.
• Undermines Parliamentary Debate - Overuse of Article 143 might bypass the Parliament, where public issues should ideally be debated and resolved democratically.

Conclusion

• A presidential reference under Article 143 is a constitutional mechanism for seeking the Supreme Court’s advisory opinion on significant legal or factual questions.
• While it plays a crucial role in clarifying constitutional ambiguities, it cannot be used to circumvent or overturn the Court’s settled judgments.
• The Supreme Court retains the discretion to accept or decline such references, and its opinions, while influential, are not binding in law.

Reference

IndianExpress | President seeks advisory opinion from SC