[This is a guest post by Rajyavardhan Singh.]
On 20 November 2025, the Supreme Court delivered its advisory opinion in Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India (“Re:Bills”), answering eleven of the fourteen questions referred under Article 143. The very act of making the reference itself drew sharp objections on maintainability (see here, here, here, and here), particularly because only months earlier – in State of Tamil Nadu v. Governor of Tamil Nadu – the Court had already addressed indefinite gubernatorial inaction by recognising a “deemed assent,” imposing timelines, and expanding judicial review so as to enable state governments to seek mandamus.
Against this background, a subsequent presidential reference made little sense. It appeared less a genuine request for clarification of unsettled law, and more an attempt to revisit – if not dilute – a final judicial determination through executive initiative. These objections were considered by the Court in Chapter III-B of the opinion, where challenges grounded on malafide intent and abuse of form were addressed.
The Court’s answer on the maintainability of the reference has already been ably examined on this blog (see here). This post does not intend to rehearse those claims. Instead, it advances a briefer and narrower discussion, examining how the Court seeks to escape the charge that the reference was, in substance, an “appeal in disguise” – namely, through its reliance on the idea of an untouched decree.
The Court’s Defence of The Untouched Decree
Borrowing wholesale from Cauvery (2), the Court’s defence separates the reliefgranted in State of Tamil Nadu from the law that produced it. It holds:
“The questions do not require this Court to vacate, amend, or modify the final relief granted by this Court in State of Tamil Nadu (supra), and instead, at the most, seek clarification on the propositions of law laid down in it, which have ramifications for the governance of all States, i.e., beyond the parties that were before it in that lis.” (paragraph 26)
It is on this idea of an untouched decree that the Court constructs its justification for why the reference does not amount to sitting in appeal:
… (s)itting in appeal would mean the variation, or vacation of the operative order in a concluded lis. Article 143 cannot be invoked to overturn a concluded adjudication inter se parties; but that cannot be conflated with the authority of this Court to answer general questions of law referred to it by the Hon’ble President… (paragraph 27)
The underlying idea of the Court’s reasoning is built around a distinction taken from Natural Resources Allocation. Therein, every judgement is said to consist of two components: first, a binding decree between the parties; and second, the general propositions of law that led to it. Only the former is insulated from reopening under Article 143. The latter remains, in the Court’s words, “malleable.”
And so, even if the reference were to hollow out – or altogether dismantle State of Tamil Nadu’s holdings on deemed assent, timelines, or the scope of gubernatorial discretion (as in many respects it did), no impropriety would follow. So long as yesterday’s winners get to keep their trophies – the Court has not, in its telling – sat in appeal.
Put simply, the Court claims a power to express a different view of law, but not to disturb the relief. And because Cauvery (2) is read as barring only the reopening of operative decrees, the reference is said to lie on the permissible side of Article 143.
Relief Preserved – and the Law Reopened
To be clear, the problem is not the Court changing its mind on the law. Courts do that all the time, and often for good reason. In Re: Bills change is triggered not by subsequent litigation or a bench confronting the question afresh. Instead, it is done at the instance of the very executive that lost under that law.
The Court, however, appears to think it has struck a clever equilibrium. Tamil Nadu keeps its relief. The Union gets the law changed. In effect saying that the executive may not undo what Tamil Nadu secured – but it may invite the Court to reconsider everything that made Tamil Nadu’s victory possible. Taken to its logical end – this reasoning produces nothing but absurdity. For this is the same as saying that a future Bench, acting under Article 143, could very well just repudiate Maneka Gandhi’s understanding of due process while defending that no overruling has occurred so long as her passport remains untouched.
This becomes particularly troubling because of the nature of the decision sought to be revisited. The real stakes in State of Tamil Nadu were never just confined to the ten sitting Bills that were granted deemed assent. They were about whether Governors may sit indefinitely on legislation, whether courts can impose timelines, and whether deemed assent exists at all.
At issue, therefore, was a recurring problem in Indian federalism (i.e. the use of gubernatorial inaction as a tool of political obstruction) and as to how constitutional functionaries must act within a scheme of responsibility and accountability. Besides, the Court itself expressly distinguishes this reference from the previous fifteen and repeatedly characterises it as ‘functional’ (paras 10, 11, 30, 51) acknowledging that the questions posed directly implicate the operational behaviour of constitutional authorities rather than abstract points of law.
Naturally, the premise that only general propositions of law are being revisited makes little sense. Functional questions structure the future exercise of public power. They are not detachable from the settlement they produce. To treat these holdings as malleable propositions at executive request, would thus be conceptualising finality that is unmistakably private-law in orientation – one that treats adjudication as complete once relief is granted.
And so, to conclude.
The foundational difficulty with the Court’s approach lies in its redefinition of finality. Constitutional adjudication does not end with relief. It ends with rules that bind power going forward. By treating decrees as sacrosanct and the proposition of law as freely revisable at executive request, the reference empties adversarial victories in constitutional law of their future value.
Advisory jurisdiction exists to clarify uncertainty. It does not exist to manage the afterlife of inconvenient judgements. For if precedents can be unsettled without overruling, then finality survives only in name.