SC likely to take up presidential reference next week

Hindustan Times

20-05-2025

The Supreme Court is likely to take up the presidential reference on the timeline for gubernatorial and presidential assent to state bills as early as next week, even as an internal debate has emerged over whether the matter must be placed directly before a Constitution bench or if a three-judge bench may first hear it and issue preliminary notices.
People familiar with the development said that the court registry has been asked to examine previous Article 143 references to determine if even initial hearings were conducted by benches of at least five judges, or if smaller benches issued notices before the matters were escalated to Constitution benches.
One of the people cited above said: 'The case will eventually go to a Constitution bench, and that is settled. The only issue being considered is whether notices to the attorney general, solicitor general, and all states can be issued by a three-judge bench initially, or must it be done solely by a five-judge bench.' This person pointed out that there is a view that since the advisory jurisdiction under Article 143 involves a substantial question of law, a five-judge bench must hear the matter from the outset.
The procedural dilemma arises even as President Droupadi Murmu, in a rare move invoking Article 143 of the Constitution, has sought the Supreme Court's advisory opinion on 14 complex legal questions following the court's April 8 judgment that laid down timelines for governors and the President to act on state bills.
The reference, filed on May 13, asked the court to clarify whether the President and governors must follow judicially prescribed timelines despite the Constitution being silent on such timeframes, and whether such executive actions are justiciable before the courts prior to a bill becoming law.
The Supreme Court's April 8 ruling, delivered by a bench of justices JB Pardiwala and R Mahadevan, for the first time prescribed a deadline of three months for the President to decide on a bill referred by a governor, and held that a governor must act 'forthwith' or within one month on re-enacted bills. If a governor withholds assent or reserves a bill for the President's consideration, the judgment held, this must be done within three months of its presentation. In that case, which involved 10 pending bills from Tamil Nadu, the court went so far as to invoke Article 142 to hold that the governor's inaction was 'illegal' and the bills would be deemed to have received assent.
The presidential reference has flagged several critical constitutional queries, including whether such 'deemed assent' is constitutionally valid, and whether the Supreme Court can impose procedural directions on the President or governors. It questioned whether Article 142 can be used to override express constitutional provisions, and whether the President's discretion under Article 201 can be subject to timelines or judicial review.
The reference also raised doubts over whether the April 8 judgment should have been decided by a larger bench, since Article 145(3) of the Constitution mandates that substantial questions of law must be heard by at least five judges. 'This concern is being looked into seriously, and the registry's review of precedent is crucial to determine how to proceed procedurally,' said another person familiar with the internal discussion.
Since independence, Article 143 has been invoked at least 14 times to seek the court's advisory opinion on complex questions of law and public importance. While the court's opinion in such references is not binding on the president, they have historically played a vital role in constitutional interpretation.
'The questions go to the heart of Centre-State relations, the federal structure, and the limits of judicial and executive powers,' said a government official familiar with the drafting process. 'This is not just about one judgment, but the architecture of how laws are made and how constitutional roles are performed.'
Among the issues raised in the reference are whether decisions of governors and the President under Articles 200 and 201 can be judicially reviewed before a law takes effect; whether courts can direct or substitute the President or governor's discretion using Article 142; and whether constitutional immunity under Article 361 precludes such review altogether.
Another critical question pertains to whether disputes of this nature should only be adjudicated under Article 131 of the Constitution, which governs disputes between states and the Union, or whether the Supreme Court can resolve them through writ jurisdiction or otherwise. The reference also asks whether the governor is constitutionally bound to act on the aid and advice of the state's council of ministers while exercising discretion under Article 200.