Presidential References In India: A Rich Past, A Fraught Present

Are Presidential References the Constitution's Compass or the Government's Shortcut?

Imagine: A law is passed by both Houses of a State Legislature. The elected representatives have done their job. But then the Governor refuses to act on the bill, neither giving assent nor rejecting it, leaving it pending for months, maybe even years. This delays the entire legislative process and causes frustration. Public anger grows, and the media begins to raise questions. Then, instead of directly addressing the issue, the President sends a reference to the Supreme Court, framing it as a set of legal questions. But this move raises a larger concern: Is this really an attempt to clarify the Constitution? Or is it a way to avoid making a politically sensitive decision by passing the responsibility to the judiciary?

This question lies at the heart of India's complicated relationship with Presidential References under Article 143 of the Constitution of India, a blend of high-minded principle and political reality.

What is a Presidential Reference, Anyway?

Article 143 of the Constitution gives the President the power to seek the opinion of the Supreme Court. If the President (acting on the advice of the Council of Ministers)^[1] feels that a serious question of law or fact has come up, one that is important for the public or the country, they can ask the Supreme Court to give its opinion. It's like the government turning to the Supreme Court, seen as the wise and trusted authority, for guidance on difficult constitutional or legal issues.

But the story is more complicated and at times, troubling. This power comes from colonial times (a similar rule existed in the Government of India Act, 1935).^[2] It was originally meant to help solve serious legal or constitutional problems that even experienced politicians and lawyers could not resolve on their own.

Yet, as we will see, the questions sent by the government have often seemed to serve a political purpose.

A Walk Through History: When the President Asked, and What Happened

Over the last seventy years, the Supreme Court has been asked for its opinion through Presidential References about eighteen times. Some of these were key moments in India's constitutional journey:

• Delhi Laws Act Case (1951): This was the first-ever Presidential Reference under Article 143. The Court held that the legislature can delegate only non-essential functions to the executive, but cannot transfer its core duty of making laws and setting policy. It laid down the foundational rules for valid delegated legislation in India. ^[3]
• Kerala Education Bill (1958): The Supreme Court examined the constitutionality of state control over private educational institutions, particularly those run by minorities. It held that regulation is allowed in the public interest but must not violate fundamental rights under Articles 29 and 30. The Court also addressed how to balance minority rights, fundamental rights, and directive principles, laying down guidance that influenced future debates on reservations and education law.^[4]
• Berubari Case (1960): The Supreme Court held that India cannot transfer any part of its territory to another country without amending the Constitution under Article 368. The Court clarified that such a transfer affects the territory of India and therefore requires Parliamentary approval through a constitutional amendment.^[5]
• Presidential Poll Case (1974): The Supreme Court held that the election of the President must not be stalled merely because some State Legislative Assemblies are dissolved. It emphasised that the constitutional process must continue uninterrupted, ensuring stability in governance.^[6]
• Special Courts Bill (1978): For the first time, the Supreme Court ruled that it is not obligated to answer every Presidential Reference under Article 143, especially if the questions are vague or seek judicial opinion on matters within Parliament's exclusive domain. This marked a cautious approach to avoid judicial overreach into political issues.^[7]

Perhaps the most famous is the Third Judges Case (1998).^[8] To clarify doubts about how judges are appointed, the Vajpayee government sought the Court's view, hoping perhaps for less judicial control. The Court, instead, doubled down and cemented the collegium system, forever shaping the judiciary's independence.

Presidential References: Clarity or Camouflage?

All of this might seem like complex legal theory, just abstract questions waiting for the Court's wise answers. But things have changed in recent decades. Now, we often see Presidential References being used as a tool in political strategy.

When courts give rulings that the government doesn't agree with, but the government doesn't have enough support (or the will) to change the law through Parliament, Article 143 can look like an easy way out. Instead of challenging the decision through the normal legal process, the government presents its disagreement as a “doubt” or confusion, and asks the Supreme Court for an advisory opinion.

This isn't just theoretical. Take the 2025 Presidential Reference^[9], which came right after the Supreme Court's decision in the case of The State of Tamil Nadu v. Union of India.^[10]

• The apex court ruled that Governors can't sit on state bills forever; they must act within a “reasonable time.”
• The Centre, instead of filing a review petition or accepting the verdict, drafted an elaborate set of 14 questions (on behalf of the President) and sent them to the Supreme Court.

Crucially, many of these questions weren't new. Almost all were already answered, explicitly or implicitly, in the very judgment the government was challenging.

So, what's really happening here?

• Delay and Deflection: The Reference process causes delays and confusion. It can put the court's judgment on hold while fresh constitutional debate takes place.
• Appearance of Respect: Instead of openly challenging the court, the government looks respectful, while still trying to weaken or sidestep the judgment.
• Political Shield: By calling it a request for “clarity,” the government hides its disagreement and avoids political backlash.

Must the Supreme Court Always Answer? And Is It Binding?

One important feature of the Constitution is that the Supreme Court is not required to answer every Presidential Reference. In earlier cases, like the Special Courts Bill^[11] case, the Court made it clear that it can say no, especially if the question crosses into the role of the government, or if it is too vague, theoretical, or political.

And what if the Court gives an opinion? In theory, it's just that, an opinion, not a binding order. Article 141, which says the law declared by the Supreme Court is binding, doesn't officially apply to advisory opinions. But in reality, these opinions have a strong moral and legal influence. Governments and lower courts almost always follow them.

Can a Presidential Reference Overturn an Existing Judgment?

Article 143 allows the President to seek the Supreme Court's opinion, but it cannot be used to overturn a judgment simply because the government disagrees with it. Once the Supreme Court has given a final and binding decision, the only proper ways to challenge it are by filing a review petition or a curative petition, not by asking for another opinion through a Presidential Reference under the guise of seeking clarity.

This was firmly established in the Cauvery Water Disputes case^[12], where the Court held that once it has rendered a final decision in its adjudicatory jurisdiction, the same issue cannot be reopened through a Presidential Reference. To do so would amount to sitting in appeal over its own judgment, something the Constitution does not permit under Article 143.

Yet, there is some nuance. In certain cases, the Court has acknowledged that while a Presidential Reference cannot disturb the core ruling or affect the rights of parties, it can be used to clarify, refine, or restate broader legal principles. Notably, in the Natural Resources Allocation case, the Supreme Court stated that although its earlier decision in the 2G case was binding, the Court could still use Article 143(1) to clarify the broader proposition of law without undoing the decision itself.^[13]

The clearest and most impactful example of this approach is seen in the Judges' Appointment cases:

• In the First Judges Case^[14], the Court held that primacy in judicial appointments lay with the executive.
• This was overturned in the Second Judges Case^[15], where the Court held that the Chief Justice of India had primacy.
• Then, through a Presidential Reference^[16], the Court clarified how the collegium system should function, explaining the consultative process in greater detail while reaffirming the core of its earlier judgment.

Thus, the Court used its advisory opinion to clarify and explain the Constitution without changing or undoing its earlier decisions. This showed that Article 143 can help make the Constitution clearer, but it cannot be used to overturn past judgments.

Therefore, a Presidential Reference cannot be used to undo a judgment, but it can be used to seek clarification on points of law that emerge from such judgments, provided it does not reopen the dispute or alter the rights already settled by the Court. When used with integrity, this power supports constitutional development. When misused, it risks becoming a political move disguised as a legal one.

What Makes the 2025 Reference So Contentious?

At first look, the 2025 Presidential Reference seems to be asking for clarity. The main question is: Can the Supreme Court set deadlines for the Governor or the President to act, even when the Constitution doesn't mention any time limit? After all, aren't these positions given some freedom under the Constitution to act at their own discretion? What exactly is the power of the courts to review the actions or decisions of the President and Governors?

However, the Supreme Court had already clearly answered these questions in its April 2025 judgment.^[17] The new Presidential Reference now seems, whether rightly or wrongly, like an attempt by the government to restart a debate it already lost, but without openly challenging the Court's decision.

Moreover, because there are now frequent clashes between the Union government and states ruled by the Opposition, a bigger issue is at stake, i.e. federalism.

When Governors delay or refuse to give assent to state bills, are they acting fairly and independently, or are they just following the wishes of the central government in New Delhi?

And when the President keeps sending legal questions to the Supreme Court, is it helping all states by bringing more clarity to the Constitution, or is it just being used to delay action and avoid tough decisions?

The Road Ahead: Compass or Shortcut?

Presidential References are not always a bad thing. When used for the right reasons, they can help the country deal with difficult or new constitutional problems. But in law and politics, the purpose behind an action matters just as much as the action itself.

So we must ask: Are we using Article 143 as a “constitutional compass” to help the government find its way through uncertain situations? Or is it turning into a “political shortcut”, a way to avoid direct disagreement and delay important changes?

In the end, whatever the Supreme Court says in response to this latest Reference will not change the judgment it has already given. But its opinion will shape how the government, Governors, and most importantly, the people, understand issues like constitutional delays, federal powers, and the boundary between politics and the judiciary. One thing is clear: the answers to these questions will help shape Indian democracy, not just for lawyers or students, but for every citizen affected by how the government works.

Views Are Personal. 

1. The Constitution of India, art 74(1) ↑

2. The Government of India Act 1935, s 213 ↑

3. In Re: Delhi Laws Act 1912, (1951) SCR 747 ↑

4. In Re: The Kerala Education Bill 1957, (1959) 1 SCR 995 ↑

5. In Re: The Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250 ↑

6. In the Presidential Poll Case, (1974) 2 SCC 33 ↑

7. In re: Special Courts Bill 1978, (1979) 1 SCC 380 ↑

8. In re: Presidential Reference No. 1 of 1998, AIR 1999 SC 1 ↑

9. In Re : Assent, Withholding Or Reservation Of Bills By The Governor And The President Of India, Special Reference No. 01/2025 ↑

10. 2025 INSC 481 ↑

11. Special Courts Bill case (n 7) ↑

12. In The Matter Of : Cauvery Water Disputes, AIR 1992 SC 522 ↑

13. In Re: Special Reference No. 1 of 2012, (2012) 10 SCC 1 para 62 ↑

14. S.P. Gupta v Union of India, 1981 SUPP (1) SCC 87 ↑

15. Supreme Court Advocates-On-Record v Union Of India, 1993 (4) SCC 441 ↑

16. In Re Special Reference No. 1 of 1998, AIR 1999 SC 1 ↑

17. Tamil Nadu case (n 10) ↑