In a constitutional democracy, moments of ambiguity often give rise to the most landmark cases. In Re Berubari Union[1] and In Re Kerala Education Bill[2] stand as testament to this statement. In a significant move, President Murmu recently invoked Article 143[3] of the Constitution to seek answers to a 14-point reference to the Apex Court.[4] Prima facie, the points appear to be isolated legal queries, but a deeper analysis reveals the sweeping constitutional implications these answers could have. If answered, this will impact gubernatorial discretion and boundaries of judicial intervention under Article 143.
This reference comes in the aftermath of the recent controversial case of State of Tamil Nadu v. Governor of Tamil Nadu (2025)[5]. The State had approached the Supreme Court asserting that the Governor had refused to act on bills passed by the Legislative Assembly. The crux of the case was that delayed assent impeded upon proper legislative functioning. The Court answered the question of whether the Governor can ignore democratic duties? Exercising its powers under Article 142[6], it held that the Governor’s delay was erroneous, and he is not allowed to withhold bills indefinitely.
The Presidential Reference has caused a stir of controversy. This is primarily because the questions in the Reference were just resolved in the Governor of Tamil Nadu’s case. Several legal scholars contend that if the reference is “bad in law”.[7] If the President is dissatisfied with the ruling, the correct recourse would be a review or a curative petition. Seeking an advisory reference sidesteps these avenues. This brings us to the important question – what was the need to reopen questions that were conclusively answered just recently? The answer to this question and its implications will be the fulcrum of this article. Further, it will also discuss the possibility for institutional reforms in this regard.
Background and Legal Framework
To understand the present matter in its entirety, it becomes imperative to fully grasp the legal framework surrounding it. The power of the President of India to seek a reference is given under 143 of the Constitution of India. 143(1)[8] states that if the President, if a question of law or fact arises and such a question is of public importance, then the President may obtain the advisory opinion of the Supreme Court. Such an opinion is of non-binding nature. On the other hand, 143(2)[9] only applies to disputes arising out of treaties and agreement. As per this clause, the Court’s opinion is binding. This provision, however, has rarely been invoked. Majority of presidential references have been under clause 1 of this Article. As per Article 145[10], all Presidential References must be heard by a bench consisting of minimum five judges.
India’s history reveals that this provision has been used in a cautious yet influential manner. The first Presidential Reference was In Re: The Berubari Union (1960) wherein the Supreme Court opined on the Indo-Pakistan Agreement (1958). It clarified that ceding Indian territory to another country requires an amendment under Article 368[11] of the Indian Constitution. Another seminal example is the Third Judges case reference (1998)[12] or the NJAC Reference which highlighted the friction between the judiciary and executive over appointment of judges.
The advisory opinion delivered in the case of Special Courts Bill (1978)[13]was significant in shaping the trajectory of Presidential References. It held that the Apex Court will only entertain questions that are specific and not vague. References that are fruitless or impinge on parliamentary privileges may not be answered. Similarly, in the case of In Re: Cauvery Water Disputes Tribunal (1991)[14], the Apex Court specifically cautioned against the misuse of Article 143. It observed that the Article cannot be used to seek opinions on abstract or politically sensitive questions that lack a constitutional base. Article 143 cannot be used to obtain validation of government policies under the guise of constitutional questions. The only instance that a Presidential Reference has been declined was with respect to the Ram Janmabhoomi case.[15]
Current Controversy
The Presidential Reference sought by the current President Draupadi Murmu contains 14 points that revolve around the ambiguity of the powers of the Governor and the President. Specifically, the ambiguity surrounding the timeline for assent of bills. At the core of this reference lies Article 200[16]. This Article empowers a Governor to withhold, assent or reserve a bill passed by the State Legislative Assembly for the President’s consideration. The current reference seeks to clarify the lack of procedural guidelines of the implementation of Article 200.
The Reference’s main issue is whether the Governor or President is bound by a timeline while dealing with a bill. If the answer to this question is negative, then can the judiciary impose any procedural timeline in this regard? It also questions whether Governors are bound by the aid and advice of the Council of Ministers when dealing with bills under Article 200, whether the judiciary can intervene during the process of a bill becoming a law and whether centre-state disputes can be resolved through mechanisms other than an Article 131[17] suit.
On the matter of the validity of the President Murmu’s reference, dissecting the Supreme Court’s ruling in State of Tamil Nadu v. Governor of Tamil Nadu becomes essential. The Court delivered a cutting judgement holding that the Governor’s delay in assenting to bills was “unconstitutional”. Although a specific timeline is not prescribed by the Constitution, he must act within a reasonable timeframe under Article 200. Light was thrown on the fact that the Governor is a constitutional position and not an independent authority. Hence, he must act in conformity with constitutional ethos, even in the absence of express provisions.
With regards to the current Reference sought, it appears as though the Union has responded to this judgement by engineering a broad 14-point reference. Instead of accepting the ruling, filing a review or a curative petition, the President has reacted in a different manner. Critics suggest that this circumvents the appropriate constitutional manner of expressing dissatisfaction with a particular judgement. This seems to be an apt instance of “new wine in an old bottle” where answered issues have been packaged as fresh constitutional doubts. The Cauvery Reference warned precisely against such a situation.
Implications of the Reference
The 14-point Presidential Reference not only raises questions on its constitutionality but also on the political and normative implications it could have. It could also have a drastic impact on the nature of federalism in India. The advisory jurisdiction functions as a validating mechanism for governmental policies, though it is not formally binding. At the heart of this reference is the question of whether Article 143 can be cleverly used to re-agitate issues that have already been amply answered by the Apex Court. In Re Cauvery Water Disputes Tribunal (1991), the Court specifically distinguished its advisory role from judicial review.
The Reference raises concerns regarding constitutional procedure as it seeks advice on questions such as the Governor’s discretion under Article 200, something which has already been clarified in the case of Governor of Tamil Nadu (2025)[18]. If this trend is accepted and answered by the Apex Court, it risks the further use of Article 143 as a constitutional bypass mechanism. It could lead to a phenomenon called “consultative forum shopping” by the Executive and weakens the finality of its judgements. It becomes imperative for the Court to discourage the use of advisory opinions as political tools. Further, the Governor of Tamil Nadu case places a rough timeline on the legislative process. The current Reference indirectly questions if the Apex Court was right in doing so.[19]
Another serious implication this reference could have is the impact on powers of Governors. If answered, it has the potential to either expand or restrain the powers of Governors. For example, if a Court even merely suggests that Governors possess wide discretion under Article 200 and not bound by the aid and advice of ministers, it could lead to interference in State Politics. This could begin a trend where Governors delay or withhold assent to legislations, thereby disrupting democratic governance. On the other hand, if the Court reaffirms that Governors must stick to a specific deadline, it could also lead to potential misuse of powers of Governors by State legislatures. There is also a slight possibility that such reaffirmation could restore the public’s trust in Governors as neutral heads of State.
The reference also creates doubts on whether the President’s discretion under Article 201 is subject to judicial review. If the President is placed above judicial scrutiny, it could lead to centralisation of power with the executive. Whereas, if executive functions routinely require an advisory opinion, this could undermine the powers of the executive. In either scenario, separation of powers is at threat. From a broader perspective, this Reference could signal a breakdown of the constitutional machinery and the expectation that persons prescribed by the Constitution will act in good faith. Considering all of the potential implications, the Supreme Court must tread carefully. Whether it chooses to answer the Reference or deny an advisory opinion, the pros and cons must be weighed.
Suggestions and Conclusion
To preserve the integrity of References under Article 143, future References must be scrutinised to meet clear thresholds of admissibility. Novelty of the legal issue, absence of recent similar judgements, public importance and the absence of political motive can be some factors that could be checked to prevent the misuse of Article 143. Such a rigorous standard will preserve the sanctity of Presidential References.
The advisory jurisdiction under Article 143 of the Indian Constitution traces its roots under the Government of India Act, 1935. While it is a splendid tool in the hands of the President, it must be used judiciously. The 14-point Presidential Reference raises significant questions about the Governor’s and President’s powers under Articles 200 and 201 and scope of Article 143 itself. The Indian judiciary can derive inspiration from the experience of other jurisdictions in this regard. In Canada, the Supreme Court is allowed to issue advisory opinions on references made by the provincial or federal governments. While these are not mandatory or binding, they carry legal authority. The opinions carry weightage in the Canadian jurisdiction. However, one important point to note is that the Canadian practice is different from the Indian practice. There exists a sense of clarity and restraint in the questions posed. Judicial pronouncements are respected as final and advisory opinions are not used as a mechanism to bypass the Constitution.[20]
In contrast, the United States firmly rejects advisory jurisdiction altogether. The Supreme Court of U.S. has refused to provide advisory opinions on questions that do not arise from real-life cases or scenarios on several occasions. The rationale behind is to observe the strictest form of separation of powers between the executive and the judiciary. India’s position falls somewhere in between. While Article 143 allows the President to seek the advisory opinion of the Supreme Court, it is only restricted to matters of public importance. The current Reference highlights the friction between Governors and State Governments. While many scholars express that such a Reference bypasses the procedure to seek a review under the Constitution, it is ultimately for the Apex Court to decide upon this. Therefore, even if an advisory opinion is provided by the Court, it must highlight the sanctity of Article 143 and the proper use of the powers it provides.
[1] In Re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 84.
[2] In Re: Kerala Education Bill, 1957, AIR 1958 SC 956.
[3] INDIA CONST. art 143.
[4] Krishnadas Rajagopal, President Murmu Asks Supreme Court Whether Timelines Can Be ‘Imposed’ on President, Governors to Clear State Bills, The Hindu, May 15, 2025,
[5] State of Tamil Nadu v. Governor of Tamil Nadu 2025 INSC 481.
[6] INDIA CONST. art 142.
[7] Does the Presidential Reference Raise Questions Which the Supreme Court Did Not Answer Earlier?, Supreme Court Observer.
[8] INDIA CONST. art 143, cls. 1.
[9] INDIA CONST. art 143, cls. 2.
[10] INDIA CONST. art 145.
[11] INDIA CONST. art 368.
[12] Special Reference No. 1 of 1998 (In Re), (1998) 7 SCC 739.
[13] In Re: Special Courts Bill, 1978, (1979) 1 SCC 380.
[14] In Re: Presidential Reference on the Cauvery Water Disputes Tribunal, (1992) 1 SCC 660.
[15] Rangarajan R, What Is a Presidential Reference? | Explained, The Hindu, May 19, 2025.
[16] INDIA CONST. art 200.
[17] INDIA CONST. art 131.
[18] Pendency of Bills before Tamil Nadu Governor, Supreme Court Observer, https://www.scobserver.in/cases/pendency-of-bills-before-tamil-nadu-governor-the-state-of-tamil-nadu-v-governor-of-tamil-nadu/ (last visited Jun. 26, 2025).
[19] FOR THE RECORD: The 14 Questions President Murmu Has Asked the SC, The Indian Express (May 15, 2025).
[20] Suchitra Kalyan Mohanty, EXPLAINER | Supreme Court Landmark Ruling on Governor Vs State, The New Indian Express (Apr. 14, 2025).
Author: Deeksha Venkatesan
Juris Centre 