THE CONTEXT: President Droupadi Murmu invoked Article 143(1) of the Constitution and transmitted fourteen questions to the Supreme Court. The core doubt is whether courts may prescribe binding deadlines for the President under Article 201 and Governors under Article 200 when Bills have been passed by State Legislatures. The Reference was listed before a five-judge Constitution Bench.
EVOLUTION OF THE SUPREME COURT’S ADVISORY JURISDICTION:
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- Article 143 is the successor to Section 213 of the Government of India Act 1935. In the Constituent Assembly, members such as K. T. Shah feared it could become a back-door appeal against unfavourable judgments. Dr B. R. Ambedkar ultimately retained it, but to curb misuse Article 145(3) mandates a minimum five-judge Bench for every Presidential Reference.
- The text states that the Court “may … report to the President its opinion”. In In re Special Courts Bill (1978) the Court confirmed that “may” is discretionary; the Court can decline to answer and must give reasons.
CONSTITUTIONAL-LEGAL ARCHITECTURE:
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- Articles 200 and 201: When a State Bill reaches the Governor, four courses are open—grant assent, withhold assent, return for reconsideration, or reserve for the President. The Constitution is silent on timelines. Because the President acts on the advice of the Union Council of Ministers, delays at the Governor level ripple upwards.
- Article 141: “The law declared by the Supreme Court shall be binding on all courts.” Only adjudicatory judgments create binding precedent; advisory opinions are highly persuasive but not strictly binding, as clarified in Xavier’s College v. State of Gujarat (1974).
- Article 143: Permits the President to seek the Court’s view on “questions of law or fact” of “public importance” unconnected with pending litigation.
MILESTONES IN INDIAN PRESIDENTIAL REFERENCES:
| YEAR | TITLE | QUESTION ASKED | RESULT | STATUS OF OPINION |
|---|---|---|---|---|
| 1951 | In re: Delhi Laws Act | Limits on delegated legislation | Constitutionality broadly upheld | Persuasive; later relied upon in Vasantlal (1961) |
| 1978 | In re: Special Courts Bill | Whether fast-track courts for Emergency-era crimes violated equality | Upheld with safeguards | Treated as binding by larger Benches in R. K. Garg (1981) |
| 1991 | In re: Cauvery Water Tribunal | Clarify Centre’s power under Inter-State Water Disputes Act | Opinion given; warned Article 143 cannot reopen settled law | Persuasive |
| 1993 | Ayodhya Reference | Whether disputed site was unaltered temple | Court declined; called it non-justiciable and pending elsewhere | — |
| 1998 | In re: Judicial Appointments | Collegium functioning | Modified 1993 ruling without overturning it | Persuasive |
| 2012 | Natural Resources Allocation | Must all natural resources be auctioned? | Clarified auction not mandatory in every case; did not disturb 2G verdict | Persuasive |
| 2025 | Assent-Timelines Reference | Can courts impose deadlines on President and Governors? | Pending | — |
THE TAMIL NADU JUDGMENT OF 8 APRIL 2025:
The Bench held that indefinite delay defeats the design of responsible government. Drawing upon the Sarkaria Commission (1988) and Punchhi Commission (2010), which proposed a maximum six-month window, the Court shortened the outer limit to four months (three plus one after reconsideration). It invoked Article 142 to grant assent itself, noting that repeated delays violated citizens’ right to timely legislation.
THE FOURTEEN QUESTIONS IN THE 2025 REFERENCE:
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- Enforceability Cluster: Whether the judiciary can convert conventions on assent into enforceable mandates without a constitutional amendment.
- Separation-of-Powers Cluster: Whether prescribing deadlines encroaches on Parliament’s amending power under Article 368.
- Review-via-Reference Cluster: Whether Article 143 may be used to revisit a final judgment, or only to clarify unsettled law.
- Scope of Discretion Cluster: Whether Presidents or Governors can indefinitely exercise a “pocket veto” where the Constitution is silent.
THE ISSUES:
| Executive forum-shopping | Bypassing the ordinary review route (Article 137) through Article 143 risks undermining judicial finality. Past advisory opinions caution against re-litigation of settled law. |
| Legal uncertainty across States | An advisory opinion is not binding under Article 141; divergent High-Court rulings may emerge until a larger Bench crystallises the ratio. |
| Centre–State trust deficit | Prolonged assent delays Tamil Nadu’s ten Bills (over one year), Kerala’s seven Bills (up to two years) have strained cooperative federalism and stalled welfare programmes. |
| Opacity in Raj Bhavan workflow | No statutory requirement exists to publish the status or reasons for delay. Citizens and MLAs have no visibility into Bill “ageing”. |
| Absence of performance metrics | Unlike the Union Cabinet Secretariat’s Monthly Summary, Raj Bhavans do not issue timelines, enabling administrative inertia. |
ETHICAL & THEORETICAL PERSPECTIVES:
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- Constitutional Morality: B.R. Ambedkar envisaged constitutional posts acting with “disciplined restraint,” not strategic silence; delays offend the spirit of responsible government.
- Rawlsian Public Reason: Citizens deserve publicly justifiable reasons for assent delays; secretive holds erode legitimacy.
- Diceyan Rule of Law: Arbitrary inaction by dignitaries contradicts equality before law, inviting judicial correction.
GLOBAL BEST PRACTICES & LESSONS:
| COUNTRY | LEGAL POSITION ON ASSENT DELAYS | TAKE-AWAY FOR INDIA |
|---|---|---|
| Canada | Royal Assent generally within days; any constitutional query is routed through cabinet reference, not by withholding assent. | Embed an administrative norm—“21-day assent rule” for Governors. |
| South Africa | President must sign or refer within reasonable time; if constitutionality upheld by Court, assent is mandatory. | Judicial override ensures no indefinite veto; India could craft similar statutory override. |
THE WAY FORWARD:
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- Legislative Assent Tracker: Parliament can enact a short statute directing the Ministry of Home Affairs to maintain a public, real-time online dashboard that lists every Bill and the date it reached the Raj Bhavan or Rashtrapati Bhavan. Open data will permit media and civil society oversight. Transparency itself often accelerates action.
- Ninety-Day Constitutional Amendment: A Constitution (Amendment) Bill can insert a new clause in Articles 200 and 201 fixing ninety days as the maximum cumulative time for any decision, reflecting the Punchhi Commission’s six-month suggestion but halving it in line with the Court’s April 2025 outer limit. Political parties across the spectrum complain about delays, creating bipartisan space.
- Deemed Assent Provision: Parliament may stipulate that silence beyond the statutory period results in “deemed assent” like the default approval of subordinate legislation under the General Clauses Act 1897. This preserves legislative primacy while retaining the Governor’s power to act early if genuine constitutional doubts exist. Deemed assent exists in several Westminster systems for subordinate legislation and can be adapted here.
- Binding Business Rules under Article 166(3): The Union Cabinet can promulgate Rules for Processing State Legislation making the 2016 Ministry of Home Affairs Office Memorandum (which already prescribes a three-month ceiling) legally enforceable. Weekly status reports from Raj Bhavan to the State Cabinet will create documentary trails for judicial review. These Rules need no Parliamentary approval, ensuring swift rollout.
- Capacity-Building for Raj Bhavan Secretariats: The National Judicial Academy and the Indian Institute of Public Administration can conduct mandatory orientation programmes on constitutional law, legislative drafting, and cooperative federalism for Governor’s advisors. Many delays stem from legal uncertainty or shortage of specialised staff. Trained secretariats will reduce inadvertent hold-ups.
THE CONCLUSION:
The 2025 Article 143 Reference presents the Court with a delicate task: to safeguard its April 8 precedent, respect separation of powers, and yet offer workable guidance. Clear, time-bound procedures are essential for legislative certainty, fiscal planning, and public trust. Embedding such procedures—whether through constitutional amendment, detailed rules, or robust conventions—will convert the rhetoric of cooperative federalism into everyday administrative reality.
UPSC PAST YEAR QUESTION:
Q. Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. 2022
MAINS PRACTICE QUESTION:
Q. Critically examine the constitutional validity of prescribing mandatory deadlines for the President and Governors under Articles 200 and 201. Discuss the implications for cooperative federalism.
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