logo
Can the Supreme Court's opinion on a Presidential Reference alter its prior ruling?

Can the Supreme Court's opinion on a Presidential Reference alter its prior ruling?

The Hindu7 days ago
The Supreme Court on Tuesday (July 22, 2025) issued notices to the Union Government and all States on a Presidential Reference seeking its opinion on whether the President and Governors can be judicially compelled to act within prescribed timelines on Bills passed by State legislatures. A Constitution Bench led by Chief Justice B.R. Gavai and comprising Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar indicated that detailed hearings would begin around mid-August. The matter has been listed for further directions on July 29, when the court will finalise the schedule for the marathon hearing.
The Reference, made under Article 143 of the Constitution, stems from President Droupadi Murmu's submission of 14 questions following the Supreme Court's April 8 ruling. That decision, delivered by a Bench of Justices J.B. Pardiwala and R. Mahadevan, arose from a petition filed by the Tamil Nadu government challenging Governor R.N. Ravi's delay in granting assent to ten Bills that had been re-passed by the State legislature, and his subsequent decision to reserve them for Presidential consideration. The judges held that the Governor's prolonged inaction was illegal and, for the first time, imposed judicially enforceable timelines on Governors and the President to act on State Bills.
The Presidential Reference broadly seeks clarity on whether courts can prescribe the manner and timeframe within which constitutional authorities such as the President and Governors must act. However, Opposition leaders and legal experts have criticised the move, viewing it as an attempt to unsettle the legal position affirmed in the April 8 ruling. They contend that the Union government is seeking to circumvent the ordinary appellate process by invoking Article 143 to indirectly challenge an unfavourable verdict.
What does the court's advisory jurisdiction entail?
Article 143(1) of the Constitution confers advisory jurisdiction on the Supreme Court, empowering it to render opinions on questions of law or fact that are not connected to any ongoing litigation. This provision traces its origins to Section 213 of the Government of India Act, 1935, which granted similar powers to the Federal Court of India. The only prerequisites are that the President must be satisfied that such a question has arisen or is likely to arise, and that it is of such a nature and of such public importance that it warrants the court's opinion. Since Independence, this power has been invoked on at least 14 occasions. However, the court is bound to limit itself strictly to the questions referred by the President and cannot exceed the scope of the Reference.
The inclusion of this provision was not without debate in the Constituent Assembly. Several members expressed concerns that such an advisory jurisdiction could be misused for political ends. Ultimately, the framers retained it, recognising its utility in resolving constitutional impasses beyond the scope of ordinary litigation. To prevent misuse, it was agreed, and later codified in Article 145(3), that Presidential References must be heard by a Bench of at least five judges.'
Can it decline a Reference?
Although the Supreme Court has agreed to entertain the present Reference, it is not obligated to do so in every instance. In In Re: The Special Courts Bill (1978), the court held that the use of the word 'may' in Article 143(1), which provides that the court 'may, after such hearing as it thinks fit, report to the President its opinion thereon', confers discretionary power to decline a Reference. However, if the court chooses not to respond, it must record its reasons. This position was reaffirmed in Dr. M. Ismail Faruqui v. Union of India (1994), where the court held that a Reference may be declined if it involves questions requiring expert evidence or those of a purely political nature, which the court is not competent to adjudicate.
In 1993, the Supreme Court declined to answer a Presidential Reference concerning the Ayodhya-Babri Masjid dispute. Justices A.M. Ahmadi and S.P. Bharucha cited the pendency of a civil suit on the same issue as grounds for refusing to respond. They also held that the Reference was 'unconstitutional' as it violated the principle of secularism, and expressed concern that the government might use the court's advisory opinion to further its political agenda.
A similar instance occurred in 1982, when the court chose not to respond to a reference made by President Giani Zail Singh regarding the constitutionality of a proposed law facilitating the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947, and May 14, 1954, to Jammu and Kashmir. Before the court could render its opinion, the Jammu & Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Bill, 1982, was re-enacted by the legislature and received the Governor's assent. The validity of the law was later challenged through regular proceedings before the Supreme Court.
Are advsiory opinions binding?
The binding force of advisory opinions rendered by the Supreme Court remains contested. Article 141 of the Constitution states that the 'law declared' by the Supreme Court is binding on all courts in India. In St. Xavier's College v. State of Gujarat (1974), the court clarified that advisory opinions do not amount to binding precedents, though they command significant persuasive authority.
Nevertheless, there have been instances where the court has appeared to treat such opinions as authoritative. In Vasantlal Maganbhai Sanjanwala v. State of Bombay (1961), the court relied on the advisory opinion rendered in In Re: The Delhi Laws Act (1951) to adjudicate the question of excessive legislative delegation. A more notable example is R.K. Garg v. Union of India (1981), where Justice P.N. Bhagwati treated the legal reasoning in the Special Courts Bill Reference as binding precedent. This was despite Justice Y.V. Chandrachud's explicit caveat in that Reference that the court's opinion were not binding on other courts.
The ambiguity persisted in In Re: Cauvery Water Disputes Tribunal (1991), where the court reiterated that advisory opinions are entitled to 'due weight and respect' and are 'normally followed.' However, it refrained from settling the question of their binding nature, observing that the issue could be revisited at a more appropriate time.
As it stands, any advisory opinion issued in the present presidential Reference would not have binding force. The Supreme Court's April 8 judgment, delivered in the exercise of its adjudicatory jurisdiction under Article 141, would continue to prevail irrespective of the opinion.
Meanwhile, similar petitions filed by Kerala and Punjab remain pending before the court. Kerala has sought to withdraw its plea, contending that the April 8 judgment has already settled the law. However, the Union government has opposed the withdrawal, arguing that Kerala's case differs from that of Tamil Nadu. Nonetheless, the advisory opinion in this Reference is expected to carry persuasive weight in those proceedings.
Can the court overturn its April 8 ruling through the Reference?
In its opinion on the Cauvery Water Disputes Tribunal Reference, the Supreme Court underscored that Article 143 cannot be used as a means for the executive to seek a review or reversal of its settled judicial decisions. 'When this court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is,' the opinion said. It further cautioned that it could not 'countenance a situation' where a question in a Reference is framed in a manner that effectively revisits a settled decision of the court.
Accordingly, the only legitimate avenue available to the Union government to challenge the April 8 decision would be to invoke the court's review or curative jurisdiction.
However, in In re Natural Resources Allocation (2012), the Supreme Court held that there is no constitutional bar on its ability to clarify, restate, or even formulate a fresh opinion on a question of law under Article 143(1), so long as the ratio decidendi of an earlier judgment remains intact and the rights of parties in the original case are unaffected. The Reference, made by then President Pratibha Patil, followed the court's decision quashing the 2G spectrum allocation and mandating auctions as the sole method for spectrum distribution. While the five-judge Bench acknowledged that the verdict had attained finality, it held that the legal principles underpinning it could be further clarified.
Similarly, in 1998, a Presidential Reference was used to modify certain aspects of a previous ruling on judicial appointments. While reaffirming the validity of the collegium system laid down in Supreme Court Advocates-on-Record Association v. Union of India (1993), the court revised the composition and functioning of the collegium, thereby refining the appointment process without overturning the earlier judgment.
Therefore, while the April 8 judgment is final and binding, its findings on the law may still be refined or elaborated upon by the Constitution Bench hearing the present Reference. Further, the Reference contains 14 questions of law, which mostly stem from the April 8 ruling, but are not limited to it. Notably, the final three questions raise broader issues concerning the scope and exercise of the Supreme Court's discretionary powers under the Constitution.
Orange background

Try Our AI Features

Explore what Daily8 AI can do for you:

Comments

No comments yet...

Related Articles

Mamata Govt moves Calcutta High Court against stay on monthly allowance to Group C, D school employees
Mamata Govt moves Calcutta High Court against stay on monthly allowance to Group C, D school employees

Indian Express

time13 minutes ago

  • Indian Express

Mamata Govt moves Calcutta High Court against stay on monthly allowance to Group C, D school employees

The West Bengal Government has moved the Division Bench of the Calcutta High Court in the case of providing allowance to the Group C and Group D staff of the School Service Commission (SSC) who lost their jobs following the Supreme Court order of April 3. A Supreme Court Bench dismissed 25,753 teaching and non-teaching staff employed in state-run and state-aided schools on April 3, upholding a Calcutta High Court order. Following the setback, the Mamata Banerjee government announced an ex gratia of Rs 25,000 for Group C staff and Rs 20,000 for Group D with effect from April 1 until the review case was disposed of in the Supreme Court. The High Court stayed the government's decision in June. According to the Government, it has the right to grant allowance for the survival of the employees. After the announcement of the allowance, a section of job seekers, who were on the waiting list for appointment in School Service Commission in 2016, approached the High Court claiming that they were deprived of their right. Justice Amrita Sinha of the High Court Single Bench in June stayed the disbursal of monthly stipends announced for sacked Group C and Group D school employees whose appointments were nullified by the Supreme Court earlier this year. The Supreme Court, while terminating the appointments, cited a 'vitiated' recruitment process. On April 17, the court allowed 'untainted' teachers to continue until December with full salaries but denied similar relief to non-teaching staff, citing 'substantially high' irregularities in their recruitment. Justice Sinha, during the hearing, said, 'The state has decided to give allowances of Rs 25,000 and Rs 20,000. How were these figures determined? Will they get paid for sitting at home? For how long?' State Advocate General Kishore Dutta had told the court that the stipends had already begun to be disbursed from April 1. Justice Sinha responded, 'Why is the state in such a hurry? Certain protocols must be followed.'

Why age of consent laws need a nuanced rethink
Why age of consent laws need a nuanced rethink

Hindustan Times

time18 minutes ago

  • Hindustan Times

Why age of consent laws need a nuanced rethink

Across India, there is a growing dissonance between the spirit of child protection laws and their real-world consequences, particularly when the setting of adolescent relationships is considered. The Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012 to shield minors from sexual exploitation, sets the age of consent at 18. While this offers a clear safeguard in theory, it has often become a tool for families to penalise relationships that cross lines of caste, community, or gender norms. What began as a shield has, in many instances, turned into a sword. Romantic love is reframed as rape. Adolescence becomes another battleground for families to reassert control — often at the cost of the boy's future and the girl's agency. This legal rigidity ignores the rapidly changing world adolescents inhabit. Teenagers today grow up in a hyper-connected environment — exposed early to sexual content, peer influence, and evolving norms around intimacy. Public displays of affection no longer scandalise the urban middle class. Smartphones, dating apps, and social media shape adolescents' understanding of love and identity. Yet, our laws pretend that teenage desire does not exist — or worse, that it must be punished. The real issue lies in POCSO's failure to account for context. It makes no distinction between an exploitative relationship and a consensual one between two teenagers. A 17-year-old in love is treated the same as a 45-year-old predator. The fallout is harsh — boys branded as rapists face shattered futures, and girls lose their voice in decisions about their own bodies. Many countries have grappled with this complexity more pragmatically. Canada allows consensual sex at 16, or even 14–15 if the partner is within five years of age. Germany permits consensual sex from age 14, provided there's no coercion and the partner is under 21. These 'close-in-age' exemptions protect against abuse while recognising adolescent sexuality as a part of growing up. At the other end are countries like Saudi Arabia and Pakistan, where all sex outside marriage is criminalised. While seemingly strict, such systems often leave girls grappling with increased vulnerability — trapped in child marriages with no protection against non-consensual marital sex. India stands at a contradictory crossroads. We criminalise all sex with those under 18 — even within marriage, post a landmark Supreme Court ruling in 2017. Yet, according to NFHS-5, over 23% of Indian women aged 20–24 were married before 18. These girls, often pushed into early marital sex, rarely find legal redress. The law steps in only when a girl elopes, not when she is quietly married off at 15. This contradiction reveals a deeper hypocrisy. Our laws are less about protecting children and more about preserving family honour. When girls choose partners outside accepted norms, the law becomes punitive. When families arrange early marriages, society looks away. This is the uncomfortable truth the current Supreme Court debate is beginning to confront. While the Centre defends the 18-year threshold, the Court has raised crucial questions: Should teenagers be jailed for exploring love? Could comprehensive sex education be a better response than prosecution? The answer lies not in lowering the age of consent indiscriminately, but in crafting a more nuanced legal framework. One that protects without criminalising, and recognises that teenage sexuality cannot be erased through denial or fear. Such a framework could include close-in-age exemptions for consensual relationships between 16–18-year-olds, judicial discretion to assess the nature and context of each case, mandatory sex education to empower young people with knowledge about consent, boundaries, and safety, unambiguous criminalisation of child marriage, with no exceptions for marital sex. Ultimately, this is not just a legal issue — it's a cultural reckoning. It forces us to confront our discomfort with adolescent agency, our refusal to talk openly about sex, and our tendency to confuse control with care. Laws alone cannot protect young people. True protection lies in equipping them to make informed choices. A just society does not fear its youth — it listens to them. AL Sharada is trustee, Population First. The views expressed are personal.

Amit Shah To Move Statutory Resolution In Lok Sabha Seeking Extension Of Presidents Rule In Violence-Hit Manipur
Amit Shah To Move Statutory Resolution In Lok Sabha Seeking Extension Of Presidents Rule In Violence-Hit Manipur

India.com

time23 minutes ago

  • India.com

Amit Shah To Move Statutory Resolution In Lok Sabha Seeking Extension Of Presidents Rule In Violence-Hit Manipur

"This House approves the continuance in force of the Proclamation, dated 13th February, 2025, in respect of Manipur, issued under Article 356 of the Constitution by the President, for a further period of six months with effect from 13th August, 2025," the resolution to be by Shah reads. The extension of the President's rule under Article 356 (3) of the Constitution means the rule is extended for a period of six months with the approval of the Parliament. Earlier on July 25, Amit Shah gave a statutory resolution to extend the already imposed President's rule in Manipur till February 13, 2026, which was admitted by the Rajya Sabha. "That this House approves the continuance in force of the Proclamation dated February 13, 2025, in respect of Manipur, issued under article 356 of the Constitution by the President, for a further period of six months with effect from August 13, 2025," the Rajya Sabha Parliamentary Bulletin stated. The centre imposed President's rule in Manipur on February 13, days after N Biren Singh resigned from his position as the Chief Minister on February 9. This came months after 25 Bharatiya Janata Party (BJP) MLAs met at the residence of party MLA Thongam Biswajit Singh in Imphal to push for the formation of a popular government in Manipur. On May 28, nearly 10 MLAs, including eight from the BJP, one from the National People's Party (NPP), and one Independent MLA, met Manipur Governor Ajay Kumar Bhalla at the Raj Bhavan in Imphal to stake a claim to form a government in the state. In February, President Droupadi Murmu imposed President's rule in Manipur after receiving a report from the state governor. Singh resigned amid violence and political instability that had plagued the state for nearly two years. The decision, exercised under Article 356 of the Constitution, means that the president will now directly control the state's administrative functions through the Governor. The proclamation, published in the Gazette of India issued by the Union Home Ministry, states that the powers of the Manipur Legislative Assembly will be transferred to Parliament, effectively suspending the state government's authority. Under this order, the Governor's powers will now be exercised by the President; the state legislature's authority will be assumed by Parliament; and specific articles of the Constitution, including those concerning legislative procedures and governance, have been suspended to ensure smooth central administration. The President's rule is typically imposed when a state government is deemed incapable of functioning in accordance with constitutional norms. The move follows political instability and concerns about law and order in Manipur. The suspension of legislative powers means that all state laws and decisions will now be made under central authority, either by Parliament or the President. The imposition of the President's rule can last up to six months, subject to parliamentary approval. During this period, the central government will oversee governance, and fresh elections may be called to elect a new assembly. The unrest in Manipur primarily involved clashes between the majority Meitei community and the minority Kuki-Zomi tribes. Tensions escalated over disputes related to economic benefits, job quotas, and land rights. The violence resulted in hundreds of fatalities and displaced approximately 60,000 individuals.

DOWNLOAD THE APP

Get Started Now: Download the App

Ready to dive into a world of global content with local flavor? Download Daily8 app today from your preferred app store and start exploring.
app-storeplay-store