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

Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles


Hans India
30 minutes ago
- Hans India
Dhankhar's Successor: EC sets ball rolling for vice presidential poll
New Delhi: The Election Commission on Wednesday said it has begun the process of holding the vice presidential election, two days after Jagdeep Dhankhar's surprise resignation from the post. The poll authority said it has started constituting the electoral college comprising MPs of both Houses of Parliament. Both elected and nominated members are eligible to vote in the vice presidential election. It is also finalising the returning officer and assistant returning officers. "On completion of the preparatory activities, the announcement of the election schedule to the office of the Vice President of India will follow as soon as possible," the EC said. Dhankhar stepped down as vice president on Monday, citing health reasons. His term was to end on August 10, 2027. The Union home ministry on Tuesday formally notified the resignation of Dhankhar from the office of the vice president. According to Clause 2 of Article 68 of the Constitution, an election to fill a vacancy in the office of the vice president occurring due to his death, resignation or removal, or otherwise, will be held "as soon as possible" after it goes vacant. The person elected to fill the vacancy will be entitled to hold office "for the full term of five years from the date on which he enters upon his office". From the day the notification is issued, "calling the electoral college to vote", and till the day of the poll, a period of 30 days is stipulated. A person cannot be elected as the vice president unless he is a citizen of India, has completed 35 years of age and is qualified for election as a member of the Rajya Sabha. A person is also not eligible if he holds any office of profit under the government of India or a state government or any subordinate local authority. The ruling NDA has a comfortable edge in the vice presidential elections. The vice president is elected by the members of Lok Sabha and Rajya Sabha, where nominated members of the Upper House are also eligible to cast their vote. The 543-member Lok Sabha has one vacant seat -- Basirhat in West Bengal -- while there are five vacancies in the 245-member Rajya Sabha. Of the five vacancies in the Rajya Sabha, four are from Jammu and Kashmir, and one from Punjab. The seat from Punjab was vacated after AAP leader Sanjeev Arora quit following his election to the state assembly in a bypoll last month. The effective strength of both the Houses together is 786 and the winning candidate will require 394 votes, considering that all eligible voters exercise their franchise. In the Lok Sabha, the BJP-led NDA enjoys the support of 293 of the 542 members. The ruling alliance has the support of 129 members in the Rajya Sabha, assuming that the nominated members vote in support of the NDA nominee, which has an effective strength of 240.


India Today
39 minutes ago
- India Today
Rarest of rare: Supreme Court on plea against acquittal of 12 in Mumbai blasts
The Supreme Court on Wednesday remarked that granting a stay on an acquittal is a "rarest of rare" occurrence while hearing the Maharashtra Government's plea challenging the acquittal of 12 accused in the 2006 Mumbai train blasts observation came from Chief Justice of India BR Gavai when the case was mentioned before his bench for the second time. "But what's the hurry? 8 have already been released. Stay on acquittal is the rarest of rare," CJI Gavai Tuesday, Solicitor General Tushar Mehta, representing the Maharashtra Anti-Terrorism Squad (ATS), had sought an urgent hearing of the matter, citing its urgency. The court then agreed to list the plea on Thursday. On Wednesday, the case was again mentioned by a counsel for the state, who pointed out a defect in the petition, noting that the Bombay High Court had quoted a portion in Hindi. The counsel assured the defect would be rectified and requested the court to go ahead with the hearing as response, the state counsel said, "We might be able to convince the court that the case is the rarest of the rare."Earlier this week, the Bombay High Court overturned the 2009 trial court verdict, which had sentenced five accused (one of whom has since died) to death and seven others to life imprisonment for their alleged involvement in the coordinated bombings on Mumbai's Western Railway local line on July 11, Chief Minister Devendra Fadnavis described the court's verdict as "shocking" and confirmed that the state will move the Supreme Court against division bench of Justices Anil Kilor and Shyam Chandak ruled that the prosecution had "utterly failed" to prove the charges and observed it was "hard to believe the accused committed the crime." The court also highlighted allegations of torture by ATS officials and noted that investigators appeared to have been under pressure to deliver quick results after the attacks."The defence had raised serious questions about the test identification parade. Many witnesses remained silent for unusually long periods, some over four years, and then suddenly identified the accused. This is abnormal," the bench witness, the court found, had been deposed in multiple unrelated crime branch cases, including the Ghatkopar blast case, making his testimony 'unreliable'. Several others failed to explain how they could suddenly recall and identify the accused after judges also highlighted procedural lapses. "Some witnesses were not even examined during the trial. As for recoveries like RDX and other explosive material, the prosecution could not establish that the evidence was sacrosanct until it reached the Forensic Science Laboratory," the bench 2006 Mumbai train blasts remain one of India's deadliest terror attacks, with seven bombs exploding in first-class compartments during peak hours on the Western Railway line.- EndsMust Watch IN THIS STORY#Supreme Court


Time of India
an hour ago
- Time of India
'Unconstitutional': US appeals court blocks Donald Trump's executive order ending birthright citizenship- What it means
US President Donald Trump A US court on Wednesday ruled that President Donald Trump's executive order seeking to end birthright citizenship is unconstitutional, implementing a nationwide block on its enforcement. The San Francisco-based 9th U.S. Circuit Court of Appeals issued a 2-1 ruling, representing the first appellate assessment since the Supreme Court's June decision that restricted lower courts' authority to issue nationwide injunctions on federal policies, Reuters reported. 'The district court correctly concluded that the Executive Order's proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional. We fully agree,' the majority wrote. The Supreme Court's June 27 verdict on Trump's birthright citizenship order required lower courts to re-evaluate their nationwide blocks. However, certain exceptions remained, allowing courts to potentially reinstate nationwide injunctions. This enabled a New Hampshire judge to halt Trump's order through an injunction covering a nationwide class action. The 9th Circuit's majority determined that the plaintiff states - Washington, Arizona, Illinois and Oregon - warranted a nationwide injunction, as a narrower order would not provide sufficient relief. by Taboola by Taboola Sponsored Links Sponsored Links Promoted Links Promoted Links You May Like This Could Be the Best Time to Trade Gold in 5 Years IC Markets Learn More Undo Washington Attorney General Nick Brown stated, "The court agrees that the president cannot redefine what it means to be American with the stroke of a pen." The Trump administration may seek review from a larger 9th Circuit panel or appeal to the Supreme Court. Trump implemented the order on January 20, upon returning to office, as part of his strict immigration stance. On the first day of his second term, President Trump signed an executive order seeking to deny American citizenship to children born in the US to foreigners who are in the country on short-term visas. The order drew a flurry of lawsuits, as most legal experts have said the 14th Amendment — which was ratified in 1868 — automatically offers citizenship to virtually everybody born within the U.S., regardless of their parents' immigration status, with extremely narrow exceptions. What it means for immigrant families? Many immigrants who feared losing their citizenship status can now feel reassured. The prospects for their children's future remain secure. The provision of birthright citizenship continues to serve as a crucial protection for numerous Indian American families stuck in green card application queues. This policy, which enables their US-born children to request changes to their parents' immigration status upon turning 21, remains intact. At present, the United States continues to grant citizenship to all infants born within its borders, regardless of their parents' citizenship status.