Presidential Reference under Article 143

President of India has framed a list of 14 Questions on which it has sought opinion of the Supreme Court under Article 143 of the Constitution of India. This Presidential Reference is based on a recent decision of the Supreme Court in the case of State of Tamil Nadu v. Governor of Tamil Nadu – (Writ Petition (Civil) NO. 1239 of 2023). Let us explore the dimensions of Article 200 and 201 of the Constitution of India which forms the crux of the discussion with respect to the Supreme Court’s judgment and Presidential Reference under Article 143.

Naweed Akhter (LL.M. – NLSIU, Bangalore)

On 8th April 2025, the Supreme Court through its decision in State of Tamil Nadu v Governor of Tamil Nadu has widened the scope of Judicial Review on Governor’s inaction on Bills sent by the State Assembly and also fixed timelines to exercise constitutional powers under Article 200 and 201.

The judgment mandated timeline even for the President when Bills were reserved for her consideration by the Governor under Article 201. The Court held that there is neither ‘pocket veto’ nor ‘absolute veto’ available to the President in discharge of her functions under Article 201.

This effectively means that inaction for a prolonged period by the Governor or the President on Bills (other than Money Bills) passed by the State Legislature is not part of the constitutional scheme under Article 200 or 201 even if no time limit is prescribed within which decisions are to be taken. It is important to understand the constitutional provisions of Article 200 and 201 to further analyse the decision of the Supreme Court.

Article 143: Evolution and Constitutional Basis

Evolved from Section 213 of the Government of India Act, 1935, which empowered the Governor-General to seek legal opinions from the Federal Court.
Article 143(1): Enables the President to refer any question of law or fact of public importance to the Supreme Court, which may answer or decline to answer.
Article 143(2): Covers disputes related to pre-Constitution treaties or agreements; the Court must give its opinion.
Article 145(3): Mandates a Constitution Bench of at least five judges for hearing a Presidential Reference, after which the SC returns the reference to the President with the majority opinion.
Nature of Opinion: Advisory only, not binding or precedent-setting, but carries persuasive value, usually followed by the executive and courts.
President acts on the advice of the Union Council of Ministers while making a reference.
Used Cautiously: Invoked only about 15 times since 1950, indicating its exceptional character.

Scope and Limitations of Advisory Opinions

No Overruling of Final Judgments: A Presidential Reference cannot nullify or override a judgment that has attained finality.
Legal Clarifications Allowed: The Court may use the advisory jurisdiction to clarify or refine the law laid down in a final judgment, without invalidating it.

Significance of the Provision with Notable Past References

Legal Clarity for Executive: Offers constitutional guidance to the President on complex matters without litigation (eg- Delhi Laws Act Case, 1951 clarified delegated legislation).
Strengthens Constitutional Governance: Clarifies grey areas in law to ensure orderly government functioning (eg- Berubari Case, 1960 ruled that ceding Indian territory needs constitutional amendment).
Respects Judicial Limits: The Supreme Court may refuse vague or political questions, reinforcing the principle of separation of powers (eg- Special Courts Bill Reference, 1978 established that vague/political questions can be declined).
Enables Judicial Transparency: Decisions on even non-binding references, bring public & legal scrutiny to complex issues. (eg- 1998 Third Judges Case laid down collegium system for judicial appointments).
Facilitates Executive Decision-Making: Constitutional tool for legal advice without adversarial litigation.
Clarifies Institutional Powers: Prevents institutional overreach and fosters cooperation among constitutional organs.
Preserves Constitutional Morality: Promotes dialogue & interpretation within a democratic framework.
Other Notable References
- 1958 Kerala Education Bill: Balanced Fundamental Rights with DPSPs; interpreted Art. 30.
- 1993 Ram Janmabhoomi Case/ 1994 Ismail Faruqui Case: Court declined to answer the reference, affirming its discretion to refuse advisory opinions when questions lack legal or practical necessity and owing to political sensitivity.
- Natural Resources Allocation Case (2012): SC upheld the 2G verdict but clarified that auctions aren’t the only valid method for allocating natural resources if justified.

President of India has invoked Article 143 and Raised 14 Questions

In reference to the detailed verdict of the Supreme Court in State of Tamil Nadu v Governor of Tamil Nadu upon the powers of the President and Governor under Article 200 and 201, the President of India by invoking her powers under Article 143(1) of the Constitution of India has framed 14 questions on which it seeks opinion of the Supreme Court. They are:

What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?
Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?
Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?
Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?
In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?
Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?
In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?
In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?
Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?
Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?
Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?
In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Hon’ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?
Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

Constitutional Principles in Question

Article 200: Governs Governor’s assent, withholding, or reserving Bills; no prescribed time limit for action.
Article 201: Governs President assent/withholding of Bills reserved by Governor; no time frame specified.
Article 361: Grants immunity to President and Governors from legal action during office, raising questions on judicial review limits.
Article 142: Grants SC power to do “complete justice” but its scope, whether procedural only or overriding substantive constitutional provisions, is contested.
Article 145(3): Prescribes a minimum five-judge Bench for substantial constitutional questions, challenged by two-judge Bench rulings.
Article 131: SC’s original jurisdiction in Centre-State disputes, questioned for its scope in recent cases.

Significance of the Presidential Reference

Clarifies Constitutional Boundaries: Seeks clarity on whether courts can impose deadlines on the President and Governors in the absence of explicit constitutional provisions under Articles 200 and 201.
Seeks Uniform Legal Clarity: Aims to resolve conflicting judicial precedents on whether actions of the President and Governors under Articles 200 and 201 are subject to judicial review.
Challenges Judicial Innovation: Questions the validity of the Supreme Court’s introduction of “deemed assent,” which bypasses formal executive approval after a set period.
Tests Federal Balance: Raises critical issues about the separation of powers and the limits of judicial intervention in executive-legislative functions within India’s federal structure.
Exposes Centre-State Tensions: Reflects concerns over alleged misuse of gubernatorial powers to delay state legislation, especially in Opposition-ruled states, spotlighting systemic friction in governance.

Strategic Implications Before the Supreme Court

Judicial Overreach vs Restraint: SC must balance between clarifying the law and risking overstepping its mandate by revisiting a settled verdict.
Precedent on Advisory Jurisdiction: Entertaining the reference could dilute the sanctity of Article 143 and encourage future misuse for political ends.
Legislative Autonomy at Stake: Any softening of the ruling may weaken constitutional checks on Governors and disrupt state legislative processes.
Threat to Doctrinal Consistency: Reopening settled norms through advisory routes risks creating instability in established constitutional jurisprudence.

Understanding Article 200

The Governor under Article 200 has three options to choose from when a bill passed by the State legislature is presented to him/her – (1) Governor assents to the Bill; (2) Governor withhold assent therefrom or (3) Governor reserves the bill for the consideration of the President. Then comes the two proviso clauses.

Proviso 1 – Once a Bill (other than a Money Bill) is presented to the Governor, she/he may “as soon as possible” return the Bill with a message requesting the House or Houses (for states having Legislative Council) to reconsider the Bill or any of its specified provisions. The House or Houses will then re-consider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.

Proviso 2 – The Governor shall not give assent to a Bill and shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

Co-relation between Article 163 and 200 – Use of Discretionary Powers by the Governor

As the general rule, the Governor in exercise of his functions under Article 200 is required to abide by the aid and advice tendered by the Council of Ministers. The only exceptions to this rule can be traced to the second proviso to Article 200 and Article 163(1) of the Constitution.

Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion, would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review. This overrules the decision in B.K. Pavitra v Union of India (2019).

Regarding use of discretionary power by the Governor under Article 200, Supreme Court made an important observation. The Court held that the removal of the expression “in his discretion” from Section 75 of the Government of India (GoI) Act, 1935 when it was being adapted as Article 200 of the Constitution clearly indicates that any discretion which was available to the Governor under the GoI Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution.

Supreme Court again reiterated the decision in Samsher Singh v State of Punjab (1975) where it held that the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

The decision on Samsher Singh further illustrated that second proviso to Article 200 was the only instance where the Governor had been entrusted with the power to act in his own discretion. Subsequent Constitution Bench decisions in M.P. Special Police Establishment v State of M.P. (2004) and Nabam Rebia and Bamang Felix V Deputy Speaker (2016) clarified that besides the instances where the Governor has been expressly conferred with discretionary powers, there may still be certain exceptional circumstances wherein it would be legitimate for him to act in his own discretion. However, the general rule remains that the Governor acts upon the aid and advice of the State Council of Ministers.

Use of Discretion Under Article 200

Under Article 200 of the Constitution, the Governor does not possess any discretion in the exercise of his functions and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows:

Where the bill is of a description as provided under the second proviso to Article 200
Where the bill is of a nature covered by
1. Articles 31A – Saving of Laws providing for acquisition of estates, etc.
2. Article 31C – Saving of laws giving effect to certain directive principles.
3. Article 254(2) – Inconsistency between laws made by Parliament and laws made by the Legislatures of States
4. Article 288(2) – Exemption from taxation by States in respect of water or electricity in certain cases.
5. Article 360(4)(a)(ii) – Financial Emergency wherein assent of the President is a condition precedent before the bill can take effect as law;
Where the bill is of a nature that if allowed to take effect then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril.

Understanding Article 201

Under Article 201, when a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that 1) he assents to the Bill or 2) that he withholds assent therefrom.

The President then can direct the Governor to return the Bill to the House or Houses of State Legislature with a message for reconsideration either of the entire Bill or some specific provision of the Bill. When a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.

Article 201 stops short of mentioning what will happen when the Bill is again returned to the President. This gives ample opportunity for the President to take his decision without any hurry based on the aid and advice of the Council of Minister. It is here where the judgment of Supreme Court becomes important particularly the aspect of time limit.

On choices available to the President under Article 201, the Supreme Court held that the use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201 – 1) to either grant assent or 2) to withhold assent to a bill.

The constitutional scheme does not allow its office holders to exercise powers in an arbitrary manner so as to subvert the constitutional design. Thus, withholding of assent under Article 201 must be accompanied by the furnishing of reasons for such withholding.

Timeline Set by Supreme Court to decide under Article 200 and 201

The Supreme Court held that the position of law is settled even where no time-limit is prescribed for the exercise of any power under the constitution or any statute. In such absence of time-limit, power must be exercised within a reasonable time. The exercise of powers by the Governors and the President under Article 200 and 201 respectively cannot be said to be immune to this general principle of law.

Based on this understanding and upon the recommendations of Sarkaria and Puncchi Commissions, the Court prescribed that the President under Article 201 is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received.

In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.

Now, the Governor generally takes his decision based on the aid and advice of his council of minister headed by the Chief Minister. However, Governor can act against such advice and either withhold his assent or reserves the Bill for the consideration of the President.

The Supreme Court in its April 2025 Judgment had provided timelines for both these aspects i.e. decision of Governor based on aid and advice and without aid and advice of the council.

In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith, subject to a maximum period of one-month.
In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months.
In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months.
In case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month.

Consequences of Not Acting Within Time Limit – Judicial Review by State Govt.

If decisions are not taken by the Governor under Article 200 within the prescribed time limit, then it is open to the State Government to challenge the inaction through writ of mandamus from a competent court against the Governor.

However, the Governor is within his/her constitutional right to defend the same and give sufficient reasons for such delay.

Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall again be open to the State Government to challenge such an action before this Court on the following grounds:

Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner.
Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit of 3 months, then it shall be open to the State Government to seek a writ of mandamus from this Court.

Supreme Court’s Decision on Those Ten Bills which were delayed

Based on the delay by the Governor of Tamil Nadu and the President upon those 10 Bills passed by the Tamil Nadu State Legislature, the Supreme Court invoked its special powers under Article 142 and declared those ten Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023. This is another matter on which the Hon’ble President has sought reference. Article 142 of the Constitution empowers the Supreme Court, in the exercise of its jurisdiction to, pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Supreme Court’s Decision on the Office of Governor

The Court further held that the Governors must act with due deference to the settled conventions of parliamentary democracy and must respect the will of the people which is expressed through the legislature as-well as the elected government responsible to the people.

They must perform their role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath she/he undertakes.

The Governors undertakes an oath to discharge their functions to the best of their ability in order to preserve, protect and defend the Constitution and the rule of law, along with avowing to devote himself to the service and well-being of the people of the State.

Therefore, it is imperative that all his actions be guided in true allegiance to their oath and that they faithfully executes their functions that is entrusted with by and under the Constitution.

Advisory Jurisdiction of SC – Presidential Reference – Article 143

Article 143 empowers the President to consult the Supreme Court on any question of law or fact of significant public importance which has arisen or is likely to arise. When such questions are referred to the Supreme Court and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. Thus, it is not binding upon the Supreme Court to mandatorily give its opinion.

Article 145(3) states that the minimum number of judges to decide such matter under Article 143 shall be five.

So, it will be decided by a Constitution Bench of the Supreme Court. The Supreme Court held that on certain Bills reserved for the President’s consideration under Article 200 which are patently unconstitutional or may hamper the principles of representative democracy, then in such instances, and as a measure of prudence, the President ought to make a reference to the Supreme Court in exercise of his powers under Article 143 of the Constitution. Presidential Reference for Advisory Opinion of the Supreme Court is not a discretionary power of the President and she acts on the advice of the Cabinet.

Advisory Role of Supreme Court under Article 143 – Whether Binding or Not?

The advisory role of the Supreme Court is different from its Ordinary Adjudication in three senses: First, there is no litigation between two parties; Second, the advisory opinion of the Court is not binding on the government; and Third, it is not executable as a judgement of the court.

The practice of seeking an advisory opinion of the Supreme Court helps the executive to arrive at a sound decision on important issues. Simultaneously, it gives a soft option to the Indian government on some politically difficult issues. The marginal note of Article 143 reads “Power of President to Consult Supreme Court”. The word “consult” shows beyond doubt that the President is not bound to give effect to the opinion.

Further, an opinion cannot be enforced or executed. So, judgments under Article 143 are not binding the way regular judgments are binding under Article 141.

In Re Cauvery Water Disputes Tribunal (1993), Supreme Court held that the advisory opinion of the Supreme Court under Article 143 is not binding on the President. Though the President normally honours it, and sometimes the Court also takes the undertaking through the Attorney general that the President will honour it.

In Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974), Nine-Judge Constitution Bench held that a report which may be made to the President in a reference under Article 143 is not binding on the Supreme Court in any subsequent matter wherein the infringement of the rights under any analogous provision may be called in question, though it is entitled to great weight.

However, there are sufficient reasons in favour of the view that opinion rendered by the Supreme Court may be treated as law declared by it under Article 141. The following points may be particularly noted:

The word “declared” in Article 141 is wide enough in its natural meaning to include advisory opinion by the Supreme Court.
The Supreme Court is not bound to give opinion under Article 143(1) but once it gives opinion its pronouncement on a point of law is nothing less than declaration of law under Article 141.
Doubtful questions of law are referred to the Supreme Court under Article 143 to clarify the law and avoid unnecessary litigation. If the courts in the country are free not to follow the advisory opinion and make their own assessments the very purpose for which the opinion was taken will be defeated, because different interpretations by various courts will perpetuate the confusion.
When the Supreme Court has to render advisory opinion under Article 143, the matter is considered by the Bench of not less than five judges and the experience shows that the Court issues notice to all interested parties and hears everyone who desires to be heard. It follows almost the same procedure as in exercise of original jurisdiction and gives its opinions after more deliberations than in most of the cases of actual controversies between the two parties. If such well-considered opinion is to bind none, it will amount to exercise in futility, knowledge of not only money and labour on the part of the State and other interested persons but also precious time of the highest Court of the country which is already overburdened.

Global Practices in Advisory Jurisdiction

Canada: Permits advisory opinions by the Supreme Court on constitutional matters referred by federal or provincial governments; the 1998 Quebec Secession Reference is a key example.
United States: Prohibits advisory jurisdiction due to a rigid separation of powers; the judiciary cannot offer opinions to the executive, as affirmed in Muskrat v. United States (1911).