Experts weigh in on President’s move
The reference, made following advice of the council of ministers, questions whether the President’s discretion under Article 201 is justiciable in the absence of explicit constitutional timelines.
The Supreme Court’s April 8 judgment directing the President and Governors to act within a time-bound framework on bills passed by state legislatures has sparked an extraordinary constitutional moment. In a rare invocation of Article 143(1) of the Constitution, President Droupadi Murmu has sought the Court’s advisory opinion on whether it is constitutionally permissible for the judiciary to prescribe such timelines?
The reference, made following advice of the council of ministers, questions whether the President’s discretion under Article 201 is justiciable in the absence of explicit constitutional timelines.
The development has led to a flurry of reactions from constitutional experts, many of whom view the move as legally fraught and politically charged.
Justice PN Prakash, former judge of the Madras High Court, said, “judgments exist which make it clear that a presidential reference cannot be used to challenge the correctness of a judgment already delivered.” He added that many of the questions raised in the reference, including the maintainability of timelines and the propriety of a two-judge bench deciding such a significant matter, had already been argued before the Supreme Court. “This is not the President acting suo motu. She acts on the advice of the Council of Ministers,” he noted, underlining the political significance of the move.
Senior advocate Gopal Sankaranarayanan observed that while presidential references are not uncommon, the context of this one is unprecedented. “Most earlier references, like on judicial appointments or the Hindu Code Bill, arose in a constitutional vacuum, not in reaction to an active judgment. Here, you are asking the very institution that passed the order to opine on its correctness, albeit indirectly,” he said. He also flagged concerns about the reference’s timing, noting that it was sent on the same day that the new Chief Justice of India, Justice BR Gavai was sworn in. “The timing was terrible.”
While the Supreme Court is not bound to answer every reference, as Article 143(1) uses the word “may”, the implications of this advisory opinion could be profound.
Alok Prasanna Kumar, lawyer and co-founder, Vidhi Centre for Legal Policy, said, “We’ve been here before,” referring to the 2011 Presidential Reference on the 2G spectrum case, when the government sought a clarification without contesting the judgment itself. However, Kumar stressed that this time, the stakes are higher.
“The court didn’t just issue guidelines for the Governor (in its April 8 order). It went a step further and said a mandamus could be issued. That’s a new constitutional frontier.”It also extended the same to the President.
The April 8 ruling, in State of Tamil Nadu vs Governor of Tamil Nadu, came after an unprecedented standoff between the state government and Governor RN Ravi, who delayed assent to 12 bills, triggering a constitutional crisis. The Court, invoking Article 142, declared that the bills had become law and directed the Governor to act within a specific timeframe. It also set timelines for Governors and the President to deal with state bills.
While many welcomed the Court’s effort to check gubernatorial overreach, the directive to the President raised eyebrows.
“Can the Court issue a writ of mandamus to the President, who is bound by the aid and advice of the Council of Ministers?” Kumar asked. While the Court may only be directing the President to act, not prescribing how to act, this creates a novel constitutional arrangement.
Senior Advocate Arvind Datar said the reference was wholly unwarranted. “Instead, they could have taken it in their stride and said okay, the Governor will give an assent in say three months or six months. Instead, they are treating it like an attack on the authority of the Governor of the President.”
The reference also has implications for the broader structure of Indian federalism.
Senior advocate Sidharth Luthra framed the issue in terms of the citizen’s right to good governance. “This is not just a tussle between institutions,” he argued. “It’s about whether a Governor or the President can paralyse governance by sitting indefinitely on legislation. That has real consequences for the rights of citizens, who elect governments to legislate and govern.”
Luthra’s concerns echo a growing sentiment that the federal balance is under strain. Vice-President Jagdeep Dhankhar had earlier criticised the judiciary for acting like a “super Parliament” and labelled Article 142, a provision that allows the Court to do “complete justice,” as a “nuclear missile” against democratic forces.
To be sure, none of this would have happened had Governors stuck to the spirit of the Constitution while dealing with state bills.
Justice Madan Lokur, former Supreme Court judge, offered a more tempered view on the reference. “Legally, the President has every right to seek a reference if there is a need for clarity,” he said. But even he acknowledged the potential constitutional confusion that may arise if a five-judge bench offers an advisory opinion that contradicts the April 8 ruling by a two-judge bench.
In the end, this moment marks more than a legal contest, experts said. It is a reflection of deepening tensions between India’s constitutional institutions. The judiciary, facing repeated instances of executive delay and intransigence, has stepped in forcefully. But in doing so, it may have opened the door to a new round of constitutional litigation over roles, powers, and the very architecture of Indian federalism.
