The President’s Question: The Supreme Court Must Respond

In a constitutional democracy as vast and diverse as India, institutional conversations are often slow, sometimes clumsy, occasionally inspired, and more often than not, essential.

Yesterday, one such conversation was initiated by the Rashtrapati Bhavan. Invoking Article 143 of the Constitution, the President referred a question of law to the Supreme Court: Can a Governor’s inaction on a bill passed by a state legislature be deemed assent? And more urgently: Can the Supreme Court mandate timelines for the Governor, or indeed, for the President, to act on such a bill?

This question follows closely on the heels of the Supreme Court’s verdict in the Tamil Nadu Governor’s Case, a judgment whose ripples are still being felt across India’s federal structure. Among its many consequences, one line in Justice Pardiwala’s concurring opinion, suggesting that gubernatorial inaction might amount to assent, has triggered political tremors and legal anxieties alike.

A Chorus of Dissent

Predictably, the reaction from some quarters has been shrill. A few legal commentators have come forward to denounce the move as a constitutional transgression. They argue that Article 143 was never intended to bypass the appellate or review jurisdiction of the Court, and that once a judgment has been delivered (as in Pardiwala J.'s), a Presidential reference becomes unnecessary, even improper.

Some go further: they allege that the executive is attempting to re-litigate what it lost in court through the backdoor of Article 143. They are recommending that the Court should decline to answer the reference.

The Presidential Reference Is Not a Challenge

Let us return to first principles. Article 143 is a constitutional safety-valve built for exactly this kind of dispute. It empowers the President to consult the Supreme Court on any question of law or fact of public importance. It provides that whenever a question of law or fact of public importance arises or is likely to arise, “if it appears expedient” the President may refer it to the Supreme Court for its opinion.

In plain terms, any significant legal question concerning government powers can be submitted for the Court’s advice. This consultative role is expressly part of the constitutional design: the President consults the Court on questions of importance, and the Court “may…report to the President its opinion”.

When the President of India invokes Article 143 of the Constitution and refers a legal question to the Supreme Court, she is not filing a case or appealing a judgment. She is asking, in good faith and constitutional humility, for the wisdom of the highest court in the land on a matter of “public importance.” That, in essence, is what President Droupadi Murmu has done in the aftermath of the Tamil Nadu Governor’s case, where the Supreme Court declared ten state bills to have been “deemed assented” and laid down timelines for gubernatorial action.

Exercising its Article 142 powers, the Court declared those bills deemed assented and for the first time imposed strict timelines: three months for a Governor (and likewise three months for the President) to act on a pending bill, and even one month to assent if a bill is repassed by the Assembly. The Court has extended its authority beyond interpretation to lawmaking by prescribing timelines where none exist in the Constitution.

The Historical Arc of Article 143 References

The scope of Article 143 has always been broad. The first reference, In re Delhi Laws Act (1951), involved concrete questions about whether laws extending other provinces’ statutes to Delhi or Part C states were constitutional.

There, after doubts arose about delegating legislative power to the executive, the President referred the validity of those laws to the Court. The Court upheld the laws but imposed limits on delegation, thus clarifying what was permissible.

Likewise, in Re: Berubari Union (1960) the President sought advice on a real territorial treaty with Pakistan; the Court held cession of territory requires a constitutional amendment.

In Re: Cauvery (1993), the Court was asked to answer complex questions on a live inter-state water dispute. Even the 1998 “Judges Appointment” reference concerned concrete rules for appointing judges. These examples show that Presidential references have addressed substantive, ongoing controversies, and not mere abstract hypotheticals.

The President’s Role: More Than a Rubber Stamp

Far from being a mere figurehead, the President has a constitutional duty to ensure that the machinery of governance runs within the boundaries of law. It is not an appeal or review petition in another guise. If a party is aggrieved, ordinary review or curative petitions exist, but the President is not such a party; she holds a unique constitutional function.

Invoking Article 143 simply recognizes that the President may legitimately seek the Court’s view on a contentious issue even after a judgment has been delivered, especially when rights of other entities (states, citizens) or future orderly governance are involved.

The Constitution itself contemplates this possibility, and Supreme Court precedent affirms that “the right of [the Court] to decline to answer a reference” is limited and not to be invoked lightly. Indeed, Natural Resources Allocation (2012) stressed that references should not be returned unanswered on procedural grounds alone; they demand careful consideration of the important issue posed.

Far from usurping judicial review, it encourages clarity by allowing the branches to seek judicial guidance. Indeed, the scheme of Articles 200, 201 and 361 (governor’s assent, presidential assent, immunity) interacts with Article 143 as part of a balanced scheme of review and advice: the Executive can ask the Judiciary to interpret its own powers when uncertainty arises, rather than risk unconstitutional action or deadlock.

By referring questions about gubernatorial assent and presidential veto, the President is essentially asking the judiciary to help maintain the proper balance between Union and States, and between legislature and executive. This is fundamentally a constitutional issue, one squarely within the Court’s remit as interpreter of the Constitution.

When the President Asks, the Court Should Answer

Montesquieu taught that liberty requires a careful separation of legislative, executive and judicial powers. In his Spirit of the Laws, he warned that “there is no liberty if the judiciary power be not separated from the legislative and executive”, a principle our Constitution upholds by keeping the branches separate. When one branch appears to nullify or direct another at will, our democracy itself is imperiled. Ultimately, the question is not whether the President may seek clarity, but whether we want certainty on these critical points.

The judiciary has many responsibilities. Among the most solemn is to interpret the Constitution, not just reactively, but proactively, when asked by another organ of State acting in good faith.

The Supreme Court, mindful of its own advisory mandate, should seize this moment to illuminate the path forward. The Court, in declining the reference, would lose a historic opportunity to shape constitutional practice. It would allow confusion to masquerade as constitutional convention. Worse, it would signal that when confronted with hard questions, silence is safer than speech. That is not the legacy the Supreme Court of India should want for itself.