Dipak Kurmi
On May 13, 2025, the President of India invoked Article 143(1) of the Constitution to refer a set of fourteen questions to the Supreme Court, seeking its advisory opinion on matters purported to be of public importance. At first glance, this may appear to be a routine constitutional exercise—after all, fourteen such Presidential References have occurred in the past. Yet what sets this fifteenth reference apart is not its procedural form but its unsettling intent. It follows closely on the heels of the Supreme Court’s emphatic and historic ruling in State of Tamil Nadu v. Governor of Tamil Nadu [2025 INSC 481], a verdict that reaffirmed the spirit of constitutional governance and clarified the largely ceremonial role of Governors in assenting to Bills passed by democratically elected legislatures.
What we now witness is not an effort to seek clarity but an attempt to muddy already clear constitutional waters. The executive, evidently dissatisfied with the Court’s assertion that the Governor’s assent is a constitutional obligation and not a discretionary privilege, has chosen to reopen settled questions under the guise of legal ambiguity. One is tempted to ask, only half in jest, whether the fifteenth question ought to have read: “Are we still required to abide by the Constitution?”
Article 143: An Advisory Tool, Not a Political Loophole
Article 143(1) allows the President to seek the Supreme Court’s advisory opinion on questions of law or fact of public importance. The Court’s opinion, however, is not binding on the President—it is not mandatory for the Court to even entertain such references. That said, its advisory opinion binds all subordinate courts, lending the provision a gravitas that must be respected. The framers of the Constitution designed this Article to be used with restraint—for difficult, unresolved legal dilemmas, not for re-litigating questions already answered by the Constitution itself, the Constituent Assembly Debates, and multiple landmark judgments.
This current reference appears to be a misapplication of Article 143—used not to illuminate, but to obfuscate; not to clarify, but to challenge the judiciary’s authority without direct confrontation. At its heart lies an uncomfortable political truth: the executive is unhappy with a clear judicial pronouncement and has resorted to advisory jurisdiction to subvert it.
Sidestepping Judicial Authority: A Constitutional Evasion
The Supreme Court’s verdict in the Tamil Nadu case was a reaffirmation of fundamental constitutional principles. It stated unequivocally that the Governor’s assent to a Bill passed by the State Legislature is not a matter of personal discretion but a constitutional duty. By converting this clarity into a “question” for review, the Presidential Reference does more than undermine a verdict—it chips away at the credibility of judicial finality. This is not a pursuit of constitutional insight; it is an evasion of constitutional compliance.
Such conduct raises grave questions about institutional balance. In a healthy constitutional democracy, different organs of government check one another’s power not by undermining legitimacy, but through adherence to clearly demarcated roles. What the present reference signals is a disturbing departure from that balance. It converts the Constitution from a moral compass into a political tool—one that can be twisted, reinterpreted, or strategically questioned when it becomes inconvenient.
The Westminster Model: Reign, Not Rule
India’s constitutional architecture, rooted in the Westminster parliamentary model, is unambiguous about the role of the President and Governors. They are constitutional figureheads who “reign but do not rule.” The real executive power lies with the Council of Ministers, and both the President and Governors are bound to act on their advice, except in the narrow and explicitly defined exceptions provided in the Constitution.
Articles 74, 75, 77, and 78 at the Union level, and Articles 163, 164, 166, and 167 at the State level, encapsulate this structure. Nowhere do these Articles offer sweeping discretionary powers to the Head of State. The suggestion that Governors may exercise independent judgment while assenting to legislation is not only constitutionally baseless, but dangerous in its implications.
The 1974 landmark judgment in Samsher Singh v. State of Punjab clearly reaffirmed this position, stating that the Governor must act in accordance with ministerial advice except where the Constitution explicitly provides otherwise. If Governors were to enjoy broad discretionary authority under Article 163(1), there would have been no necessity for Article 163(2) to specify areas where discretion is permitted. In constitutional interpretation, the principle of expressio unius est exclusio alterius—the express mention of one implies the exclusion of others—applies with particular force.
Moreover, historical context strengthens this argument. Unlike Section 75 of the Government of India Act, 1935, Article 200 of the Indian Constitution—governing assent to Bills—does not use the phrase “in his discretion.” This is not a mere drafting oversight; it is a deliberate and informed omission. The framers of the Constitution consciously intended to restrict the Governor’s discretion in legislative matters.
When Interpretation Becomes Subversion
To frame already settled constitutional issues as open-ended questions for the Court’s advisory jurisdiction is to confuse form with substance. It misuses a serious constitutional provision to achieve political ends. The questions raised are neither novel nor unresolved. They are well-settled through authoritative judicial precedents, constitutional text, and the original intent of the framers.
By pushing these issues back into the Court through Article 143, the executive sends a message: verdicts can be questioned without appeal, and constitutional interpretation can be relitigated through advisory detours. This not only disrespects judicial authority but endangers the stability of constitutional governance itself.
The Judiciary’s Right to Decline
It is entirely within the Supreme Court’s power to decline this Presidential Reference. Article 143(1) does not impose a mandatory obligation. In the past, the Court has declined to answer references it found inappropriate or speculative. In Re: Kerala Education Bill (1958), and In re: Special Courts Bill (1979), the Court drew clear lines between questions of law deserving constitutional deliberation and those merely political in nature.
Where the questions posed are already resolved or motivated by political discomfort, the Court has every right—perhaps even a duty—to refuse. Judicial time is finite, and judicial sanctity is fragile. To spend it revisiting political grievances dressed up as constitutional queries is to allow the judiciary to be drawn into executive gamesmanship.
The Moral Compass of the Constitution
The crisis today is not legal—it is moral. The Constitution is not an elastic document meant to serve shifting political interests. It is a compact between the State and its people, rooted in the principles of limited government, institutional responsibility, and democratic sovereignty. To question these principles under the guise of seeking advice is to treat constitutional morality as optional.
This is where the broader implications lie. If Governors are allowed to act against the advice of elected governments without explicit constitutional sanction, we risk sliding into a colonial-style governance model where unelected figureheads override democratic mandates. Such a vision is anathema to the ideals of the Indian Republic.
Reaffirm or Refuse: The Road Ahead
The Supreme Court now stands at a critical juncture. It may choose to answer the reference, reiterating its previous position and reaffirming constitutional clarity. But the more powerful act might be to refuse the reference entirely—sending a clear signal that constitutional certainties are not up for opportunistic debate. That the Constitution is not an open-ended question but a settled framework to be respected and implemented.
Paul Freund once observed that the disciplines of law and art both grapple with the challenge of giving form to inspiration, of translating ideals into enduring structures. The Constitution, in this light, is not merely a legal document—it is a work of moral imagination. Its authority derives not from clever reinterpretation, but from honest application. And its future depends not on strategic questioning, but on faithful adherence.
As India faces this constitutional moment, it must remember that democratic institutions are only as strong as the commitment to uphold them. The real test is not whether the Supreme Court answers the questions—it is whether the political system can ask the right ones.
(The writer can be reached at dipakkurmiglpltd@gmail.com)
