Context: What is a Presidential Reference?

Source: The Hindu

President Droupadi Murmu, has made a reference to the Supreme Court, under Article 143 of the Constitution, on certain questions of law and has sought its opinion on those questions.

The advisory jurisdiction of the Supreme court under Article 143 is a relic of the Government of India act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion.

A similar provision is available in the Canadian constitution. This mechanism allows the Supreme Court of Canada to offer opinions on legal questions referred to it by the federal or provincial governments. The U.S. Supreme Court on the other hand has consistently declined to provide any advisory opinion to the executive as it would violate the strict separation of powers envisaged in its constitution.

As per Article 143, the President may refer any question of law or fact of public importance to the Supreme Court for its opinion. The President makes such a reference based on the advice of the Union Council of Ministers. Article 145 of the Constitution provides that any such reference shall be heard by a bench of minimum five judges.

The Supreme Court may provide its opinion after such hearing as it thinks fit. The opinion is legally not binding on the President, and does not hold a precedential value for the courts to follow in subsequent cases.

There have been around fifteen references made since 1950 before the current reference. Some of the landmark opinions:

1. The first reference was made in the Delhi Laws act case (1951) which laid down the contours of delegated legislation, through which the legislature could delegate legislative powers to the executive for effective implementation of any law.
2. The reference in the Kerala Education Bill (1958) resulted in the court laying down the principle of harmonious construction between Fundamental Rights and Directive Principles of State Policy as well as interpretation of protection given to minority educational institutions under Article 30.
3. In the Berubari Case (1960), the court opined the ceding or acquisition of territory by India would need a constitutional amendment under Article 368.
4. In the Keshav Singh case (1965), the court interpreted the powers and privileges of the legislature
5. In the Presidential poll case (1974), the court opined that Presidential elections should be held not withstanding vacancies in the electoral college due to dissolution of State assemblies.
6. The opinion provided in the Special Courts Bill (1978) was significant on many counts. It provided that the court may decline to answer a reference, that the questions referred must be specific and not vague and the court while answering a reference, should not encroach upon the functions and privileges of Parliament.
7. The third Judges case reference (1998) laid down detailed guidelines for the collegium system with respect to the appointment of judges to the higher judiciary. It is not obligatory for the Supreme Court to render its opinion.
8. However, out of the references made till date, the court has declined to provide its opinion for only one reference in 1993 with respect to the Ram Janmabhoomi case.

The current reference is a result of a recent Supreme Court judgement that had specified timelines for Governors and the President to act on Bills passed by State legislatures. The court had also held that decisions by Governors and the President on such bills are subject to judicial review.

The present reference has raised 14 questions, primarily surrounding the interpretation of Articles 200 and 201, for the court’s opinion. The government has raised questions regarding the authority of the courts to prescribe timelines when they are not specified in the Constitution.

It has questioned whether the actions of Governors and the President can be made justiciable at a stage prior to the enactment of a Bill into a law. The reference also seeks opinion on the extent of powers that can be exercised by the Supreme Court under Article 142.

Political differences between the Union government and Opposition ruled State governments have been the principal reason for this conflict.

Model Question:

“Discuss the significance of Article 143 of the Indian Constitution in maintaining the balance between the executive and the judiciary. In what ways has the advisory jurisdiction of the Supreme Court been used by the President?”

Model Answer:

Article 143 of the Indian Constitution confers advisory jurisdiction upon the Supreme Court, allowing the President to refer matters of public importance or legal complexity for the Court’s opinion. It is a unique feature of the Indian constitutional scheme aimed at maintaining a healthy balance between the executive and the judiciary.

Under Clause (1) of Article 143, the President may seek the opinion of the Supreme Court on any question of law or fact, whereas Clause (2) is specific to disputes arising out of pre-Constitution agreements.

Though the opinion rendered by the Supreme Court is advisory and not binding, it holds great moral and legal authority. It serves as a mechanism for preventive justice, enabling the executive to avoid unconstitutional actions and promoting constitutional harmony.

Prominent references include:

1. In Berubari Union (1960) – clarified that a constitutional amendment was required to cede territory.
2. Keshav Singh’s case (1965) – clarified the powers of legislatures versus the judiciary.
3. Ayodhya reference (1993) – the Court declined to answer, citing the matter’s political nature.
4. In re Special Courts Bill (1979) – upheld the constitutional validity of special courts for politicians.

Thus, Article 143 facilitates inter-institutional consultation, reduces constitutional friction, and affirms the Supreme Court’s role as a constitutional advisor. However, its cautious invocation reflects the need to avoid judicial overreach or politicization of the judiciary.

In sum, Article 143 exemplifies the constitutional principle of checks and balances, aiding in the informed functioning of the executive without infringing upon judicial independence.