President Droupadi Murmu was at the swearing-in ceremony at Bhushan Ramkrishna Gavai in Rashtrapati Bhavan, New Delhi on May 14. Image source: PTI
Story so far: Under Article 143 of the Constitution, President Droupadi Murmu mentioned the Supreme Court on certain legal issues and sought views on these issues.
What is historical background?
Under Article 143, the Supreme Court’s advisory jurisdiction is a relic of the Government of India Act 1935. It gives the Governor the discretion to transfer any question of public importance to the Federal Court’s opinion.
The Canadian Constitution also has similar provisions. This mechanism allows the Supreme Court of Canada to comment on legal issues mentioned by the federal or provincial governments. On the other hand, the U.S. Supreme Court has been refusing to provide any advice to executives because it would violate the strict separation envisioned in its constitution.
What are the regulations?
Under Article 143, the President may submit any legal issue or public importance to the Supreme Court’s opinion. The President makes such references based on the recommendations of the Council of Ministers of the Union. Article 145 of the Constitution provides that any such reference shall be heard by a judge of at least five judges.
The Supreme Court can give its opinion after the hearing that it deems appropriate. The opinion is not legally binding on the president and does not follow the precedent value of the court in subsequent cases.
However, it has strong persuasive value, usually after the executive and court.
What was the past situation?
Since 1950, approximately 15 references have been prior to the current reference. Some of the landmark opinions in such references are summarized here.
The first reference was proposed in the Delhi Law Act (1951), which created the outline of the “authorized legislation” by which the legislature could delegate legislative power to senior executives to effectively enforce any law. The references in the Kerala Education Act (1958) led the court to propose the principle of harmonious construction between fundamental rights and directive principles of state policies, as well as the protection interpretation of Article 30 for minority educational institutions. In the Berubari Case (1960), the court held that in India the court held that in the case, the case would conduct the article of case 368 (in 368) in the case to constitute the article of 368 (in 368). The court interprets the powers and privileges of the legislature. In the Presidential Poll (1974), the court held that the vacancies of the Election Academy should be held at the Election Academy due to the dissolution of the State Assembly.
Among many charges, the opinions provided in the Special Court Act (1978) are important. It stipulates that the court may refuse to answer the reference; the questions mentioned must be specific rather than vague. The court should not infringe upon the functions and privileges of the Parliament when answering references. The Third Judge Cases Reference (1998) has developed detailed guidelines for the appointment of judges as universities of senior judiciary.
It is not necessary for the Supreme Court to make an opinion. However, among references so far, the court refused to provide a reference in 1993 in the case of RAM Janmabhoomi.
What is the current reference?
The current reference is the result of a recent Supreme Court decision that specifies a timeline for the governor and the president to take action against bills passed by the state legislature. The court also believes that the governor and the president’s decisions on such bills will be subject to judicial scrutiny. The current references raise 14 questions, mainly around the interpretation of Articles 200 and 201 to show the court’s point of view. The government has raised questions about the power of courts to set a timetable when they are not specified in the constitution. It questioned whether the actions of the governor and president could be legally legally before the enactment of the bill. The reference also sought the opinions of the Supreme Court of its scope of powers that can be exercised under Article 142.
Political differences between coalition governments and opposition state governments have been the main cause of this conflict. The Supreme Court adopted the timeline set for the president in the memorandum of the Office of the Ministry of Home Affairs when it passed its judgment. In Cauvery Dispute Reference (1992), the court held that it could not appeal with its advisory capacity. However, authoritative opinions on this reference will hopefully address these issues surrounding these constitutional provisions, which are crucial to the smooth functioning of our democracy and federalism.
Rangarajan R is a former IAS official and author of The Course of Political Simplified. The views expressed are personal.
publishing – May 19, 2025 at 08:30 am IST
