Presidential reference puts Supreme Court in a bind

President Droupadi Murmu’s decision to refer 14 ‘questions of law’ to the Supreme Court for its collective opinion has created ripples in legal circles. Even as constitutional law experts examine them and share their opinion, several questions have been raised or revived.

It was on 8 April, 2025 that a Supreme Court Bench of Justice JB Pardiwala and Justice R Mahadevan ruled that the action of the Tamil Nadu Governor RN Ravi in withholding assent to 10 Bills passed by the state legislature was ‘illegal and erroneous’. The Bench also frowned upon the Governor sitting over the Bills for an unreasonable period of time and referring them to the President after a long gap.

The Bench ruled that once a after its passage by the legislature, he has limited options. He can grant his assent, withhold his assent or refer it to the President if there is a question of law. In case he decides to withhold his assent, the Governor must cite reasons and send it back to the legislature for reconsideration. If the legislature passes the Bill again and sends it back to the Governor, he would have no option but to give his assent.

The Bench specifically laid down a timeline for the Governor and the President to decide on Bills presented for their consideration—specifically because the Constitution itself lays down no such timeline.

This loophole in the Constitution was exploited by the TN Governor to first to refer the Bills to the President after almost a year. Justices Pardiwala and Mahadevan ruled that neither the President nor the Governor could take "unlimited time" to take decisions.

President under Article 143(1) refers to SC the following 14 questions for consideration and to report its opinion. https://t.co/eLfLKiNdV0 pic.twitter.com/8DbM2eqF7j

— Arvind Gunasekar (@arvindgunasekar) May 15, 2025

Theby the Vice President Jagdeep Dhankar and the likes of BJP MP Nishikant Dubey. While the Vice President described it as a nuclear missile, Dubey accused the outgoing Chief Justice of India of instigating a civil war. The Union of India, which had opposed the plea for direction moved by the Tamil Nadu Government, could have filed a review petition or a curative petition. It could have also asked for a review by a larger Constitution Bench.

However, it has decided to use the office of the President to ask essentially political questions. There is some concern whether the President is right in referring to the court questions which should logically have been raised by the government in court. Should the President seek the Supreme Court’s opinion after a judgment is delivered? Can the President effectively ask the Supreme Court to effectively consider giving an opinion to repudiate a judicial order?

The Article 143 reads, “If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon”.

SC advocate Sanjoy Ghosh posted on X on Thursday, 15May, “Ar t 143 is the advisory jurisdiction of the SC. It was intended to give the govt an opportunity to seek the opinion of the court in advance on the constitutional vires of any proposed legislation or other issues of law which had not already reached the court. It should not be used as a tool to circumvent or obviate the necessity to challenge a judicial order by filing a review and then a curative! Also, the opinion of the court is not binding and so Pardiwala J’s judgement would still hold the field. I feel the Supreme Court should decline to answer the reference!”

As tensions between the judiciary and the executive intensify, President Droupadi Murmu has asked, "How can Supreme Court put a timeline when the Constitution does not?". The tone and the tenor of the questions suggest that the Supreme Court had gone beyond its mandate while fixing timeline.