By: Vaneet Kumar and Bipul Kumar
INTRODUCTION
On 20 November 2025, the five-judge bench of the Supreme Court of India in In Re: Assent, Withholding or Reservation of Bills (hereinafter ‘In Re: Assent’) answered the sixteenth presidential reference under Article 143(1) of the Constitution of India. The apex Court, while answering the reference, addressed the “correctness” of the law laid down in State of Tamil Nadu v. Governor of Tamil Nadu (hereinafter ‘Governor of Tamil Nadu’), a judgment which dealt with the extent of the Governor’s powers concerning legislative bills. The reference ultimately held that the Governor of Tamil Nadu was erroneous in law as it contradicted earlier precedents.
It is not necessary, for this piece, to delve into the substance of either the opinion or the judgment, as it seeks to answer a foundational procedural question: Can an advisory opinion test the legality of precedent and effectively overturn it? If yes, what is the law of the land in such a scenario? While addressing these questions, this piece argues that while advisory opinions can re-examine binding precedent, they cannot, in legal effect, overrule a binding judgment under Article 141 of the Constitution. They can, however, legally replace a decision pronounced per incuriam. This analysis has three parts: the first defines the constitutional position of advisory opinions; the second tests whether they can overrule precedent; the third clarifies how overruling differs from a per incuriam declaration.
CONSTITUTIONAL POSITION OF ADVISORY OPINION
An opinion rendered under Article 143(1) of the Constitution, due to its Constitutional origins, arises not from an adversarial dispute between parties, but from a request by the President of India seeking the Supreme Court’s advice. Because the Court, in this ‘advisory’ jurisdiction, advises the President instead of adjudicating a dispute, the judicial view is characterised as an “advisory opinion”. This nature has a direct constitutional consequence: since the opinion does not decide a dispute, it fails to “declare” a law under Article 141 of the Constitution and therefore does not attain binding force. To put it simply, the advisory opinion cannot trigger the doctrine of stare decisis in its favour. The Supreme Court in In Re: Assent, orally, affirmed this position of law. This position of “non-binding” was also previously, if not precedentially, clarified in Special Reference No. 1 of 1964.
OVERRULING DECISIONS THROUGH ADVISORY OPINIONS
Since an advisory opinion is a non-binding creature, can it effectively overrule a binding decision? This question was addressed at length in In Re: Assent; thus, this piece draws on that opinion. The court, at first, cited In Re: Special Courts Bill, which allowed the Court to “re-examine the question already decided by it and to overrule, if necessary”. In Re: Assent further cites In Re: Natural Resources Allocation to clarify that by overruling, the Court meant to redecide the “question of law” without changing the relief provided in the original decision. For example, if the original decision decided the law as “A” and provided relief “X”, the advisory opinion can change the law to “B” without changing the relief to “Y”. In effect, the advisory opinion merely suggests that the original decision should not operate as precedent for future cases. In other words, it aims to take away the character of “precedent” of the original decision with which the latter was born. Despite this purported aim, does this change in law (here, from A to B) materialise as the law of the land?
This question originates because the Supreme Court has allowed itself, while interpreting the Constitution, to meddle with the “binding” law while exercising a “non-binding” jurisdiction. While answering this very question, Justice Chandrachud in In Re: The Special Courts Bill (hereinafter ‘In Re: Special Courts’) ruled that “all other courts in the territory of India are concerned, they ought to be bound by the view expressed by this court even in the exercise of its advisory jurisdiction”. This view towards law, with due respect, is not merely a disregard of the judicial consensus formed as a result of several decisions, which note that an advisory opinion is non-binding, but also falls short of providing any justification except for his personal emotion: “[my] opinion is an exercise in futility is deeply frustrating”. Furthermore, this statement was ignored in subsequent Article 143 cases, so much so that even In Re: Assent, despite quoting it, does not apply the same. It is our position that if the view propounded in In Re: Special Courts is followed, it will impair judicial discipline and blur the line between advisory and adversary jurisdiction. Furthermore, logically, a binding creation cannot be substituted or overpowered by a non-binding conception. This conception is supported by the view propounded in Ahmedabad St. Xavier’s College v. State of Gujarat. Thus, notwithstanding In Re: Special Courts, an advisory opinion cannot effectively overrule a binding legal judgment and thus fail to become the law of the land.
However, the sceptics might, by citing In Re: Delhi Laws Act and Third Judges Case, argue that non-binding opinions ultimately become the ‘law of the land’, thereby challenging the preceding conclusion. These citations might at first blush be persuasive; however, we contend that these non-binding opinions become ‘law of the land’, in terms of Article 141, only via binding decisions. For example, the law laid down in In Re: Delhi Laws Act became part of the material under Article 141 only after it was approvingly cited in Harishankar Bagla v. State of MP, as the latter decision was under no legal mandate to follow In Re: Delhi Laws. Similar logic can be extended to the NJAC Case, which relied on the Third Judges Case. Therefore, it can be affirmed that the advisory opinions do not automatically become the law under Article 141. However, upon observing the trend in India, it can be stated that these ‘non-binding’ opinions often, if not always, become ‘binding’ after getting an approving citation in a decision because of their high persuasive value. Hence, the sceptics’ argument, by mischaracterising the ‘persuasive value’ of the opinions as the ‘force of law’, fails to invite any alteration into the conclusion: the change in law propounded in opinions does not automatically materialise as the law of the land under Article 141.
DISTINGUISHING PER INCURIAM
While the position of law on the overruling of binding verdicts by advisory opinions appears straightforward, it is essential to question whether a decision declared per incuriam is deemed to be ‘overruled’, and therefore, warrants the same aforementioned treatment. Consider In Re: Natural Resources Allocation’s position, “overruling … is done only in exceptional circumstances, such as when the earlier decision is per incuriam”. It prima facie categorises per incuriam decisions as a sub-category of ‘overruled’ verdicts, and therefore, answers the question for this section of the piece in the affirmative. Since an overruled decision is like a live-born creature under Article 141 of the Constitution, which is exterminated by a subsequent decision, the In Re: Natural Resources Allocation’s statement would also consider a per incuriam decision along similar lines.
However, the general understanding of the concept of per incuriam, as elucidated by the Supreme Court in Hyder Consulting (UK) Ltd. v. State of Orissa, provides that since such decisions are pronounced in ignorance of already existing precedents, they hold no binding value and cannot be considered as “law declared” under Article of the Constitution. Thus, in contrast to ‘overruled’ decisions that are considered to be live-born creatures, a per incuriam decision is a stillborn creature under Article 141 of the Constitution that held no real legal power ab initio and therefore requires no extermination by another legally binding decision. Thus, a non-binding opinion like In Re: Assent that holds a high persuasive value can fairly, legally, and easily substitute or take the place of a per incuriam decision that held no power at all. However, it must be clarified that this advisory view, which replaces the per incuriam decision, remains non-binding.
CONCLUSION
Drawing on all the observations, it can be stated that an advisory opinion cannot effectively overrule and displace an ‘erroneous’ precedent without an affirmation or reiteration from a subsequent binding decision; it can, however, substitute a decision which was per incuriam in nature. The ramifications of this difference lie in the fact that, while a coequal bench can ignore a decision declared per incuriam, it cannot ignore a decision merely labelled ‘overruled’ or ‘erroneous’ by an advisory opinion, since that decision continues, in its own right, under Article 141 and, irrespective of the advisory opinion’s characterisation, to hold the force of law. To avoid any confusion, a coequal bench in the latter scenario should refer the matter to a larger bench for an authoritative ruling, or the metamorphosis of the non-binding opinion into “law declared” under Article 141.
Since the present case In Re: Assent determined that the Governor of Tamil Nadu was per incuriam, the latter stands legally substituted by the former as “correct law”. Hence, In Re: Assent acquires no value under Article 141, the Governor of Tamil Nadu ceases to be a binding precedent, and the pre-existing precedents continue to govern a now-chaos-free legal battleground. Before concluding, it is pertinent to mention that the seemingly obvious reasoning advanced in this piece has passed the scrutiny of neither the Courts nor time. Resultantly, the correctness of the conclusion regarding In Re: Assent will also be subject to the test of time and legal development.
(Vaneet Kumar is a fifth-year B.A. LL.B. (Hons.) student at Jindal Global Law School, O.P. Jindal Global University, India. Bipul Kumar is a second-year B.A. LL.B. (Hons.) student at Jindal Global Law School, O.P. Jindal Global University, India. The authors may be contacted via mail at 21jgls-vkumar@jgu.edu.in and 24jgls-bkumar@jgu.edu.
