Constitutional contours: The power and purpose of Article 143(1)

The Indian Constitution, a living document, often presents complex questions that require nuanced interpretations to ensure its provisions align with the evolving needs of governance. One such issue has arisen with the President of India invoking Article 143(1) to seek the Supreme Court’s advisory opinion on a constitutional question stemming from a recent judgment.

This judgment mandated that a Governor must act on a Bill passed by a State Legislature within a stipulated period, failing which the Bill would be deemed to have received assent. The President’s reference seeks clarity on this interpretation, prompting the Supreme Court to constitute a five-judge Constitution Bench, led by Chief Justice B.R. Gavai, to hear the matter on August 19.

However, Tamil Nadu and Kerala have raised preliminary objections, questioning the maintainability of this reference. They argue that the issue has already been settled by the Supreme Court, and under Article 141, the law declared by it is binding on all courts and constitutional authorities. They contend that seeking an advisory opinion on a decided matter is unnecessary and potentially undermines the binding precedent established under Article 141.

This debate brings to the fore a critical tension between the advisory jurisdiction of the Supreme Court under Article 143(1) and the binding nature of its judgments under Article 141, raising questions about the scope and purpose of presidential references.

To evaluate the objections, it is essential to delineate the roles of Articles 141 and 143(1). Article 141 establishes that the law declared by the Supreme Court is binding on all courts within India, ensuring uniformity in judicial interpretation.

The term “courts” has been expansively interpreted to include statutory tribunals and quasi-judicial bodies, reinforcing the judiciary’s role in maintaining legal consistency. In contrast, Article 143(1) empowers the President to refer any question of law or fact of public importance to the Supreme Court for its advisory opinion, irrespective of whether the issue has been previously adjudicated. The provision’s language is broad, allowing references on questions that “have arisen or are likely to arise,” thereby encompassing both settled and prospective issues.

The discretionary nature of Article 143(1) is evident in its wording, which states that the Supreme Court “may” provide an opinion. This discretion was affirmed in the Kerala Education Bill case (1959), where the court held that it could decline to answer a reference if the question is hypothetical, politically charged, or otherwise unsuitable for advisory adjudication.

However, the existence of a prior judgment does not inherently bar a reference, as the advisory jurisdiction operates independently of the binding precedent framework under Article 141.

Historical instances of presidential references under Article 143(1) underscore the provision’s flexibility. In Re: Special Reference No. 1 of 1998 (Third Judges Case), the President sought the Supreme Court’s opinion on judicial appointments, despite prior rulings in the Second Judges Case. The apex court entertained the reference and provided clarity without questioning its maintainability. Similarly, following the 2G Spectrum judgment, the President referred questions related to issues already addressed by the Court, which again responded without objection.

These cases demonstrate that Article 143(1) allows the President to seek guidance on matters of constitutional significance, even when they involve existing precedents, particularly when broader governance implications persist.

The objections raised by Tamil Nadu and Kerala, which hinge on the binding nature of Article 141, overlook the distinct constitutional role of Article 143(1). The President, when invoking this provision, does not act in a judicial capacity but as a constitutional functionary seeking to clarify legal or governance issues. The advisory opinion, as clarified in Keshav Singh’s Case (1965), is not a binding judgment but carries significant persuasive authority, guiding constitutional functionaries and shaping future judicial and administrative actions.

The present reference centers on the Governor’s role in the legislative process, a recurring point of contention in India’s federal structure. Governors, as constitutional heads of states, are expected to act as neutral facilitators of the legislative process, not as obstructions. The Supreme Court’s earlier ruling, which mandated timely action on Bills, sought to prevent executive inaction from derailing legislative intent. However, the ambiguity surrounding the “stipulated period” and the concept of “deemed assent” has sparked debate, particularly in states where Governors have delayed or withheld assent, leading to tensions with elected legislatures.

The President’s reference is timely, as it addresses a question with far-reaching implications for Centre-State relations. Governors’ discretionary powers, though limited, have often been a flashpoint, as seen in recent controversies in states like Tamil Nadu, Kerala, and Punjab, where delays in assenting to Bills have led to accusations of partisan overreach. By seeking the Supreme Court’s opinion, the President aims to ensure that constitutional processes remain robust and that the Governor’s role aligns with democratic principles.

The Supreme Court’s advisory opinion, while not legally binding, will carry significant weight.

Conversely, if the court revisits its interpretation, it could provide nuanced guidance on the extent of gubernatorial discretion, potentially redefining the boundaries of executive power in India’s federal framework.

Moreover, the reference highlights the broader utility of Article 143(1) as a mechanism for resolving constitutional ambiguities. Unlike regular litigation, which is adversarial and case-specific, advisory opinions allow the court to address systemic issues in a non-contentious manner, offering clarity to policymakers and constitutional functionaries. This process strengthens India’s constitutional framework by fostering dialogue between the judiciary and other organs of the state.

The objections that have been raised by Tamil Nadu and Kerala, while rooted in a respect for judicial precedent, do not undermine the constitutional validity of the President’s reference under Article 143(1).

The provision is designed to address questions of public importance, even those previously adjudicated, provided they carry significant constitutional weight. The Supreme Court’s discretion to entertain such references, coupled with its historical practice, supports the legitimacy of this process.

As the Constitution Bench prepares to hear this matter, its opinion—whether it upholds the existing precedent or offers a fresh perspective—will shape the discourse on the Governor’s role and the delicate balance of power in India’s federal system.

This exercise, far from undermining judicial authority, exemplifies the dynamic interplay of constitutional mechanisms in addressing complex governance challenges.

(The writer is a senior Advocate)