Presidential Reference under Article 143: An Instrument of Constitutional Dialogue

The Indian Constitution is not merely a legal document but a living framework for governance, evolving through judicial pronouncements and legislative responses. According to the Law Commission of India (Report No. 272), India has seen the judiciary emerge as a co-equal branch of governance, particularly in interpreting ambiguous constitutional provisions. One unique feature of India’s constitutional system is Article 143, which empowers the President to seek the Supreme Court’s advisory opinion on questions of law or fact of public importance. Justice Fali S. Nariman has often stressed that such mechanisms reflect “mature constitutional statesmanship.”

What is the Issue?

As of May 2025, President Droupadi Murmu invoked Article 143 to refer questions concerning Articles 200 and 201 regarding the powers of the Governor and President in assenting to state legislation. This follows the Supreme Court’s judgment imposing timelines for action on State Bills, igniting a crucial federal debate. With 15 Presidential references made since 1950, underlining the rare and exceptional nature of this constitutional mechanism. This provision is pivotal in promoting constitutional clarity without triggering adversarial litigation.

What is The Concept of Presidential Reference under Article 143?

1. Article 143 of the Indian Constitution empowers the President to refer to the Supreme Court any question of law or fact that is of public importance. This provision stems from Section 213 of the Government of India Act, 1935, which granted similar powers to the British-appointed Governor-General.
2. Article 143(1) enables the President to seek the Court’s opinion on any matter of public importance. Article 143(2) relates to matters pending before any court, particularly those involving treaties or agreements. Importantly, Article 145 mandates that a bench of at least five judges should hear such references.
3. While the opinion given under Article 143 is not binding on the President or other courts, it holds immense persuasive value. As Justice V.R. Krishna Iyer observed, such references offer “a solemn judicial discourse on national questions.” Notable examples include:

• • Delhi Laws Act Case (1951): Defined limits of delegated legislation.
  • Kerala Education Bill (1958): Harmonized Fundamental Rights and Directive Principles.
  • Berubari Case (1960): Ceding Indian territory requires constitutional amendment.
  • Presidential Poll Case (1974): Polls valid despite vacancies in electoral colleges.
  • Third Judges Case (1998): Strengthened the Collegium system.
  • Keshav Singh Case (1965): Balanced judicial review and legislative privilege.

What are the Comparative Perspective and Other Nations’ Mechanisms?

India is among the few democracies where the executive can formally consult the judiciary. In contrast, other countries follow diverse models:

1. Canada: The Supreme Court of Canada has an advisory jurisdiction under the Supreme Court Act (s. 53), and opinions are regularly sought on constitutional and legal questions. For instance, the 2014 reference on Senate reform and the 1998 Quebec secession reference have had long-lasting legal and political consequences.
2. United States: The U.S. Constitution maintains a strict separation of powers. Article III does not allow the Supreme Court to issue advisory opinions. 
3. United Kingdom: Although it does not have a written constitution, the UK’s judicial system allows opinions from the Law Lords (now the Supreme Court) via declaratory judgments in matters of significant legal uncertainty.
4. Australia: The High Court cannot provide advisory opinions due to constitutional constraints (Section 76).
5. France: The Conseil Constitutional reviews laws pre-promulgation, effectively offering binding advisory review on constitutional compliance.

Thus, India’s mechanism is more aligned with Canada’s model, blending judicial authority with executive consultative processes. India’s model is more flexible than the U.S., yet more limited in scope and enforceability compared to France and Canada.

What is the Significance and Importance of Article 143?

1. Strengthening Democratic Functioning: Presidential references help clarify ambiguous constitutional provisions that directly impact governance. For instance, the current reference regarding Articles 200 and 201 aims to resolve confusion over the President and Governor’s timelines in assenting to State Bills, ensuring smooth legislative functioning.
2. Reinforcing Federalism through Constitutional Adjudication: The mechanism serves as a peaceful constitutional tool to mediate Centre-State disputes. The Cauvery Water Dispute Reference (1992) clarified the court’s jurisdiction, preventing executive overreach and protecting federal balance—an essential feature of India’s constitutional architecture.
3. Promoting Constitutional Morality and Accountability: These references ensure that the executive remains within constitutional limits. The Kerala Education Bill (1958) reference helped delineate the harmony between Fundamental Rights and Directive Principles, guiding future governance within moral constitutional boundaries.
4. Facilitating Judicial Innovation and Development: The Third Judges Case (1998) through an Article 143 reference led to the evolution of the Collegium system, reinforcing judicial independence. Such proactive interpretations highlight how Article 143 enables the judiciary to play a creative constitutional role.
5. Providing Legal Certainty on Contentious Issues: In the Berubari Union case (1960), the Court clarified that ceding Indian territory required a constitutional amendment, resolving a critical ambiguity that could have led to constitutional chaos in foreign policy decisions.
6. Preventive Adjudication Reduces Future Litigation: By offering early clarification on complex constitutional questions, Article 143 prevents avoidable future litigation. This is crucial, considering the Supreme Court’s pending case load stood at over 71,000 cases in 2023 (as per the Supreme Court Annual Report).
7. Upholding the Rule of Law without Political Bias: Presidential references ensure legal interpretations are provided without direct adjudication between contesting parties. This aligns with the spirit of Keshavananda Bharati v. State of Kerala (1973), which emphasized the importance of maintaining constitutional supremacy and the basic structure doctrine.
8. Enhancing India’s International Democratic Standing: The structured use of constitutional tools like Article 143 reflects India’s maturity as a democratic polity. According to the Global Democracy Index 2023, India ranks 46th globally, and such institutional practices reinforce its commitment to rule of law and constitutionalism, gaining international credibility.

What are the Challenges in the Use of Article 143?

1. Vagueness and Political Overtones in Questions: Often, the questions referred are excessively broad, vague, or politically sensitive—such as the current 14-point reference on gubernatorial powers—which risks dragging the judiciary into the political arena, as seen in the Ram Janmabhoomi case (1993), where the Court declined to respond.
2. Non-Binding Nature Limits Impact: While the Supreme Court’s opinion carries persuasive value, it is not legally binding. In the Berubari Union case (1960), despite the Court’s opinion requiring a constitutional amendment to cede territory, the government initially overlooked it, leading to constitutional ambiguity.
3. Possibility of Political Misuse: The executive may invoke Article 143 to defer difficult decisions or shift responsibility to the judiciary. For example, references during politically sensitive periods may be used to dilute public accountability or delay contentious policy action.
4. Lack of Public and Civil Society Engagement: The advisory process under Article 143 is highly insular, with no structured mechanism for participation from civil society, academia, or affected stakeholders, which undermines democratic transparency and inclusive deliberation.
5. Additional Burden on Judicial Resources: The already overburdened Supreme Court, with over 80,000 pending cases (as of 2024), has to divert time and judicial attention for non-binding advisory matters, potentially delaying decisions in regular constitutional and statutory cases.
6. Centre-State Federal Strain: References arising from politically contentious issues—such as gubernatorial assent or Article 200 disputes—can intensify federal tensions, especially when Opposition-ruled States perceive the process as biased or centralizing in intent.
7. Absence of Detailed Procedural Norms: Unlike regular constitutional litigation, the process under Article 143 lacks codified procedural guidelines or timelines, leading to discretionary delays and inconsistent hearings, reducing the efficacy of the advisory mechanism.
8. Ambiguity in Implementation and Follow-Up: The government may cherry-pick aspects of the Court’s opinion or delay implementation, reducing clarity and accountability—as seen in selective adoption of observations in past references like the Special Courts Bill case (1978).

What can be the way forward?

1. Codify Advisory Procedures with Clear Guidelines: The Supreme Court should frame structured norms for the admissibility, timeline, and nature of questions under Article 143. Canada’s Supreme Court Reference mechanism offers a model—where questions are precisely formulated, with public hearings and timelines ensured by law.
2. Restrict Scope to Constitutional and Legal Matters: The reference mechanism should be used strictly for constitutional interpretation, not political or administrative matters. For instance, vague references like in the Ram Janmabhoomi case (1993) should be filtered out to preserve judicial neutrality.
3. Enhance Transparency through Public Participation: The process must allow for amicus curiae briefs and participation by experts, think tanks, and civil society—similar to how the Indian Supreme Court permitted public submissions during the Right to Privacy and Section 377 hearings.
4. Clarify Legal Status of Advisory Opinions: A constitutional amendment or authoritative judicial interpretation can clarify whether such opinions are binding or persuasive. This would prevent selective implementation by the executive, as was observed post the Berubari opinion (1960).
5. Institutional Judicial Accountability: The Supreme Court can include an annual report section on Article 143 references—highlighting the number of references received, opinions rendered, and implementation status—ensuring transparency and institutional introspection.
6. Federal Consultation for Relevant Matters: For references impacting federal subjects, a structured mechanism for consultation with States should be developed. This would reduce Centre-State mistrust and enhance cooperative federalism, aligning with recommendations of the Punchhi Commission (2010).
7. Establish a Constitutional Review Committee: A standing committee (similar to the UK’s Joint Committee on Human Rights) could vet the content and relevance of proposed references before they reach the judiciary, ensuring quality control and constitutional propriety.

Conclusion:
The Presidential Reference under Article 143 symbolizes India’s constitutional maturity—an effort to ensure “dialogue over diktat” between arms of the state. It reflects the spirit of cooperative constitutionalism, fostering clarity over confrontation. As former Chief Justice M.N. Venkatachaliah observed, “Democracy is about constitutional trust, and this trust is rooted in institutions like the judiciary that rise above politics.” The current reference before the Supreme Court is a test not just of constitutional interpretation, but of our democratic ethos. The balance it seeks to strike between judicial activism and executive discretion will define the contours of Indian federalism for years to come.