President Droupadi Murmu during the swearing-in ceremony of Justice Bhushan Ramkrishna Gavai at the Rashtrapati Bhavan in New Delhi, on May 14.
| Photo Credit: PTI

The story so far: President Droupadi Murmu, has made a reference to the Supreme Court, under Article 143 of the Constitution, on certain questions of law and has sought its opinion on those questions.

What is the historical context?

The advisory jurisdiction of the Supreme Court under Article 143 is a relic of the Government of India Act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion.

A similar provision is available in the Canadian constitution. This mechanism allows the Supreme Court of Canada to offer opinions on legal questions referred to it by the federal or provincial governments. The U.S. Supreme Court on the other hand has consistently declined to provide any advisory opinion to the executive as it would violate the strict separation of powers envisaged in its constitution.

What are the provisions?

As per Article 143, the President may refer any question of law or fact of public importance to the Supreme Court for its opinion. The President makes such a reference based on the advice of the Union council of ministers. Article 145 of the Constitution provides that any such reference shall be heard by a bench of minimum five judges.

The Supreme Court may provide its opinion after such hearing as it thinks fit. The opinion is legally not binding on the President, and does not hold a precedential value for the courts to follow in subsequent cases.

However, it carries a strong persuasive value and is usually followed by the executive and the courts.

What were past instances?

There have been around fifteen references made since 1950 before the current reference. Some of the landmark opinions from such references is summarised here.

The first reference was made in the Delhi Laws Act case (1951) which laid down the contours of ‘delegated legislation’, through which the legislature could delegate legislative powers to the executive for effective implementation of any law. The reference in the Kerala Education Bill (1958) resulted in the court laying down the principle of harmonious construction between Fundamental Rights and Directive Principles of State Policy as well as interpretation of protection given to minority educational institutions under Article 30. In the Berubari case (1960), the court opined that ceding or acquisition of territory by India would need a constitutional amendment under Article 368. In the Keshav Singh case (1965), the court interpreted the powers and privileges of the legislature. In the Presidential poll case (1974), the court opined that Presidential elections should be held notwithstanding vacancies in the electoral college due to dissolution of State assemblies.

The opinion provided in the Special Courts Bill (1978) was significant on many counts. It provided that the court may decline to answer a reference; that the questions referred must be specific and not vague; and that the court, while answering a reference, should not encroach upon the functions and privileges of Parliament. The Third Judges case reference (1998) laid down detailed guidelines for the collegium system with respect to the appointment of judges to the higher judiciary.

It is not obligatory for the Supreme Court to render its opinion. However, out of the references made till date, the court has declined to provide its opinion for only one reference in 1993 with respect to the Ram Janmabhoomi case.

What is the current reference?

The current reference is a result of a recent Supreme Court judgment that had specified timelines for Governors and the President to act on Bills passed by State legislatures. The court had also held that decisions by Governors and the President on such Bills are subject to judicial review. The present reference has raised 14 questions, primarily surrounding the interpretation of Articles 200 and 201, for the court’s opinion. The government has raised questions regarding the authority of the courts to prescribe timelines when they are not specified in the Constitution. It has questioned whether the actions of Governors and the President can be made justiciable at a stage prior to the enactment of a Bill into a law. The reference also seeks opinion on the extent of powers that can be exercised by the Supreme Court under Article 142.

Political differences between the Union government and Opposition-ruled State governments have been the principal reason for this conflict. The Supreme Court had adopted the timelines prescribed for the President in the Office Memorandum of the Home Ministry while passing its judgment. In the Cauvery dispute reference (1992), the court had opined that it cannot sit on appeal over prior judgments in its advisory capacity. However, an authoritative opinion on this reference will hopefully settle the issues surrounding these constitutional provisions that are crucial for the smooth functioning of our democracy and federalism.

Rangarajan R is a former IAS officer and author of ‘Courseware on Polity Simplified’. Views expressed are personal.