Can the Supreme Court's opinion on a Presidential Reference affect its prior ruling?

The Hindu

22-07-2025

The Supreme Court on Tuesday (July 22, 2025) issued notices to the Union Government and all States on a Presidential Reference seeking its opinion on whether the President and Governors can be judicially compelled to act within prescribed timelines on Bills passed by State legislatures. A Constitution Bench led by Chief Justice B.R. Gavai and comprising Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar indicated that detailed hearings would begin around mid-August. The matter has been listed for further directions on July 29, when the court will finalise the schedule for the marathon hearing.
The Reference, made under Article 143 of the Constitution, stems from President Droupadi Murmu's submission of 14 questions following the Supreme Court's April 8 ruling. That decision, delivered by a Bench of Justices J.B. Pardiwala and R. Mahadevan, arose from a petition filed by the Tamil Nadu government challenging Governor R.N. Ravi's delay in granting assent to ten Bills that had been re-passed by the State legislature, and his subsequent decision to reserve them for Presidential consideration. The judges held that the Governor's prolonged inaction was illegal and, for the first time, imposed judicially enforceable timelines on Governors and the President to act on State Bills.
The Presidential Reference broadly seeks clarity on whether courts can prescribe the manner and timeframe within which constitutional authorities such as the President and Governors must act. However, Opposition leaders and legal experts have criticised the move, viewing it as an attempt to unsettle the legal position affirmed in the April 8 ruling. They contend that the Union government is seeking to circumvent the ordinary appellate process by invoking Article 143 to indirectly challenge an unfavourable verdict.
What does the court's advisory jurisdiction entail?
Article 143(1) of the Constitution confers advisory jurisdiction on the Supreme Court, empowering it to render opinions on questions of law or fact that are not connected to any ongoing litigation. This provision traces its origins to Section 213 of the Government of India Act, 1935, which granted similar powers to the Federal Court of India. The only prerequisites are that the President must be satisfied that such a question has arisen or is likely to arise, and that it is of such a nature and of such public importance that it warrants the court's opinion. Since Independence, this power has been invoked on at least 14 occasions. However, the court is bound to limit itself strictly to the questions referred by the President and cannot exceed the scope of the Reference.
The inclusion of this provision was not without debate in the Constituent Assembly. Several members expressed concerns that such an advisory jurisdiction could be misused for political ends. Ultimately, the framers retained it, recognising its utility in resolving constitutional impasses beyond the scope of ordinary litigation. To prevent misuse, it was agreed, and later codified in Article 145(3), that Presidential References must be heard by a Bench of at least five judges.'
Can it decline a Reference?
Although the Supreme Court has agreed to entertain the present Reference, it is not obligated to do so in every instance. In In Re: The Special Courts Bill (1978), the court held that the use of the word 'may' in Article 143(1), which provides that the court 'may, after such hearing as it thinks fit, report to the President its opinion thereon', confers discretionary power to decline a Reference. However, if the court chooses not to respond, it must record its reasons. This position was reaffirmed in Dr. M. Ismail Faruqui v. Union of India (1994), where the court held that a Reference may be declined if it involves questions requiring expert evidence or those of a purely political nature, which the court is not competent to adjudicate.
In 1993, the Supreme Court declined to answer a Presidential Reference concerning the Ayodhya-Babri Masjid dispute. Justices A.M. Ahmadi and S.P. Bharucha cited the pendency of a civil suit on the same issue as grounds for refusing to respond. They also held that the Reference was 'unconstitutional' as it violated the principle of secularism, and expressed concern that the government might use the court's advisory opinion to further its political agenda.
A similar instance occurred in 1982, when the court chose not to respond to a reference made by President Giani Zail Singh regarding the constitutionality of a proposed law facilitating the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947, and May 14, 1954, to Jammu and Kashmir. Before the court could render its opinion, the Jammu & Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Bill, 1982, was re-enacted by the legislature and received the Governor's assent. The validity of the law was later challenged through regular proceedings before the Supreme Court.
Are advsiory opinions binding?
The binding force of advisory opinions rendered by the Supreme Court remains contested. Article 141 of the Constitution states that the 'law declared' by the Supreme Court is binding on all courts in India. In St. Xavier's College v. State of Gujarat (1974), the court clarified that advisory opinions do not amount to binding precedents, though they command significant persuasive authority.
Nevertheless, there have been instances where the court has appeared to treat such opinions as authoritative. In Vasantlal Maganbhai Sanjanwala v. State of Bombay (1961), the court relied on the advisory opinion rendered in In Re: The Delhi Laws Act (1951) to adjudicate the question of excessive legislative delegation. A more notable example is R.K. Garg v. Union of India (1981), where Justice P.N. Bhagwati treated the legal reasoning in the Special Courts Bill Reference as binding precedent. This was despite Justice Y.V. Chandrachud's explicit caveat in that Reference that the court's opinion were not binding on other courts.
The ambiguity persisted in In Re: Cauvery Water Disputes Tribunal (1991), where the court reiterated that advisory opinions are entitled to 'due weight and respect' and are 'normally followed.' However, it refrained from settling the question of their binding nature, observing that the issue could be revisited at a more appropriate time.
As it stands, any advisory opinion issued in the present presidential Reference would not have binding force. The Supreme Court's April 8 judgment, delivered in the exercise of its adjudicatory jurisdiction under Article 141, would continue to prevail irrespective of the opinion.
Meanwhile, similar petitions filed by Kerala and Punjab remain pending before the court. Kerala has sought to withdraw its plea, contending that the April 8 judgment has already settled the law. However, the Union government has opposed the withdrawal, arguing that Kerala's case differs from that of Tamil Nadu. Nonetheless, the advisory opinion in this Reference is expected to carry persuasive weight in those proceedings.
Can the court overturn its April 8 ruling through the Reference?
In its opinion on the Cauvery Water Disputes Tribunal Reference, the Supreme Court underscored that Article 143 cannot be used as a means for the executive to seek a review or reversal of its settled judicial decisions. 'When this court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is,' the opinion said. It further cautioned that it could not 'countenance a situation' where a question in a Reference is framed in a manner that effectively revisits a settled decision of the court.
Accordingly, the only legitimate avenue available to the Union government to challenge the April 8 decision would be to invoke the court's review or curative jurisdiction.
However, in In re Natural Resources Allocation (2012), the Supreme Court held that there is no constitutional bar on its ability to clarify, restate, or even formulate a fresh opinion on a question of law under Article 143(1), so long as the ratio decidendi of an earlier judgment remains intact and the rights of parties in the original case are unaffected. The Reference, made by then President Pratibha Patil, followed the court's decision quashing the 2G spectrum allocation and mandating auctions as the sole method for spectrum distribution. While the five-judge Bench acknowledged that the verdict had attained finality, it held that the legal principles underpinning it could be further clarified.
Similarly, in 1998, a Presidential Reference was used to modify certain aspects of a previous ruling on judicial appointments. While reaffirming the validity of the collegium system laid down in Supreme Court Advocates-on-Record Association v. Union of India (1993), the court revised the composition and functioning of the collegium, thereby refining the appointment process without overturning the earlier judgment.
Therefore, while the April 8 judgment is final and binding, its findings on the law may still be refined or elaborated upon by the five-judge Bench hearing the present Reference. Further, the Reference contains 14 questions of law, which mostly stem from the April 8 ruling, but are not limited to it. Notably, the final three questions raise broader issues concerning the scope and exercise of the Supreme Court's discretionary powers under the Constitution.