[This is a guest post by Bhushan Raut.]
On 15th May, 2025 the President of India Droupadi Murmu invoked article 143 of the Indian Constitution and made a 14-point reference to the Supreme Court of India. This reference comes after a landmark yet controversial judgement of a division bench of the Supreme Court delivered in the case of State of Tamil Nadu v. Governor of Tamil Nadu, which has been critically analysed on this blog. Given the widespread criticism of this judgment (where even the Vice President heavily criticised the judiciary for its judicial overreach) a challenge to this judgment was anticipated. This post critically examines the constitutional validity and implications of invoking Article 143 in such contexts, questioning whether this practice undermines constitutionalism and judicial finality. Additionally, it explores the broader utility of Article 143 by comparing it with Section 213 of the Government of India Act, 1935, and interrogates the assumption that a Presidential Reference necessitates a Constitution Bench.
Historical Antecedents: Section 213 of the Government of India Act, 1935
The roots of Article 143 date back to the Government of India Act, 1935. Before the establishment of Supreme Court of India on 28th January 1950 the apex court of India was the Federal Court which was established as per Section 200 of the Government of India Act, 1935. As per section 213 of the 1935 Act, it vested in the Governor General of India (Viceroy) the power to make a reference to the Federal Court.
The rationale behind introducing advisory powers under Section 213 of the Government of India Act, 1935, was to provide the Governor-General who was vested with expansive discretionary authority — a mechanism to seek judicial validation for legislative or administrative decisions. While the Federal Court retained discretion to respond, its opinion, though non-binding, often served to legitimise executive action, especially in politically sensitive contexts.
Importantly, India was not a federation prior to 1935. It was only with the enactment of the Government of India Act that a quasi-federal structure was formally introduced, necessitating the creation of a Federal Court with jurisdiction over both provinces and princely states (see A Constitutional History of India, 1600–1935 by Arthur Berriedale Keith).
One may then ask: why was such a novel provision of advisory jurisdiction introduced at that constitutional moment? A plausible explanation lies in the Crown’s intent which was acting through the Governor-General to ensure that no legal ambiguity would operate in favour of Indian political interests. As legislative power gradually shifted to elected Indian representatives, there arose a tangible risk that laws might conflict with imperial objectives. The advisory jurisdiction thus emerged as a tool of pre-emptive legal control: a way to vet Indian-made laws before they could take effect against British interests.
One might argue that even without this provision, the Governor-General—armed with broad overriding powers—could intervene if an enactment appeared unfavourable to British interests. However, the formalization of the advisory mechanism served to legitimise such interventions under the cloak of judicial endorsement.
Admittedly, the Governor-General used this advisory mechanism only sparingly, four times to be exact in In re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 ; In re the Hindu Women’s Right to Property Act, 1937 and the Hindu Women’s Right to Property (Amendment) Act, 1938; In re Allocation of Lands and Buildings Situate in a Chief Commissioner’s Province and In re the Power of the Federal Legislature to Provide for the Levy of an Estate Duty in Respect of Property Other Than Agricultural Land, Passing Upon the Death of Any Person (1944 SCC OnLine FC 16). However, its mere presence served as a constitutional buffer — not to bind him, but to justify executive hesitation or override. However, both the infrequency of its invocation and its non-binding nature suggest that the provision’s primary role was symbolic rather than functional — much like the contested status of Article 143 today.
Textual and Structural Analysis of Article 143
After the enactment of the Constitution of India this power of reference was transferred to the President of India. Of course, the powers of Governor General and Federal Court are starkly different from the President and the Supreme Court, where the Governor General was far more powerful than President and the Supreme Court is far more powerful than Federal Court. Moreover, there are two differences between section 213 of GoI act and Article 143 (article 119 of the draft constitution). Interestingly enough there has hardly been any discussion on this article. The only discussion in the Constituent assembly debates was a clarification sought about whether the Supreme Court is bound to answer the reference made. There are two major differences in section 213 of GoI act and article 143. First is that section 213 only provided for “question of law” whereas Article 143 provides for “question of law and fact”. Second, is the additional clause 2 of Article 143. As per this clause the President can ask the Supreme Court for its opinion on matters related to disputes that may arise out of pre-constitutional treaties, agreements, covenants, engagements, sanads or other similar instruments. In opinions under this clause which relate to matters before the enactment of the Constitution the Supreme Court has to compulsorily give its opinion, as it is qualified by the word “shall”.
Article 143 empowers the President to refer questions “of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court.” But what if the Supreme Court has already ruled on the very issue now referred? A textual reading of Article 143 reveals no express restriction on the nature of questions that may be asked. However, the very structure of the provision presupposes that the question remains open — that it is not conclusively adjudicated.
The framers envisioned Article 143 as a mechanism to clarify grey areas of constitutional interpretation — not as a tool to reopen settled positions or re-litigate black-letter rulings. To deploy it otherwise is to invite a form of constitutional workaround, one that risks undermining the principle of stare decisis and bypassing the Court’s established adjudicatory hierarchy. Article 143 is neither an appeal nor a review provision; it cannot stand in for curative or review petitions under Articles 137 or 32/136.
In the present reference of 2025, however, the Supreme Court — through a Division Bench — has already issued a binding decision in State of Tamil Nadu v. Governor of Tamil Nadu. Invoking Article 143 in such circumstances effectively invites the Court to sit in appeal over itself.
This reading is supported by the Supreme Court’s own precedent in In re: Cauvery Water Disputes Tribunal, where the Court unequivocally held that questions already adjudicated by it cannot be re-examined through Article 143. The phrase “to obtain the opinion of the Supreme Court” inherently assumes that the Court has not yet rendered its view on the matter.
While it may now be expected that a Constitution Bench will be formed to answer the present reference (or maybe the Supreme Court might not answer it), one must ask: where is it mandated that such references must be heard by a Constitution Bench? As we shall see, the Constitution is silent on this point. In any event, the more appropriate constitutional path would have been to file a review petition, allowing the Chief Justice of India to constitute a larger bench under the Court’s regular adjudicatory framework.
Composition of Benches in Presidential References
But where does the Constitution mandate that the Supreme Court must constitute a Constitution Bench to answer a Presidential Reference under Article 143? Article 143 does not specify the number of judges required to hear this matter. But as per Article 145(3), for deciding cases which involve a substantial question of law as to the interpretation of the constitution, the bench should consist of five judges. Now whether the expression “such a nature and of such public importance” in article 143 is equivalent to “substantial question of law as to the interpretation of constitution” remains a moot question. Article 143 uses the phrase “opinion of the Court,” but does that necessarily imply the opinion of a Constitution Bench of the Supreme Court? Among the last 15 presidential references, seven were decided by five-judge benches, five by seven-judge benches, one by an eight-judge bench, and two by nine-judge benches. This raises a pertinent question: what is the underlying logic or guiding principle behind constituting a Constitution Bench of five, seven, eight, nine, or even more judges? In the absence of any codified criteria, the decision ultimately rests with the Chief Justice of India, who, as the master of the roster, exercises considerable discretion in this regard. This is yet another instance where such unfettered discretion comes to the fore — a theme that this blog has repeatedly engaged with and critiqued.
Since the independence of India article 143 has been invoked a total number of 16 times. All expect one (In re: Ram Janma Bhumi-Babri Masjid Matter which queried whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Babri Masjid) have been on questions of law.
The Transformative Potential—or Lack Thereof—of Article 143
The transformation from colonial governance to a republican constitutional order necessitates a re-evaluation of Article 143’s role. Unlike the Governor-General, the President does not possess overriding legislative powers, and the Supreme Court’s opinions under Article 143 are advisory, not binding. This raises a critical question: does Article 143 serve as a meaningful tool for constitutional interpretation, or does it function more as a legitimating device—a constitutional ornament rather than a binding mechanism?
Unlike India, other leading constitutional democracies such as the United States and Australia reject advisory opinions altogether, grounded in their strong separation-of-powers traditions and the need for concrete controversies. In both jurisdictions, the judiciary acts only within the scope of a real legal dispute. If India’s Article 143 operates in a vacuum — with no binding effect on the President and no obligation on the Supreme Court to respond — its purpose in a post-colonial constitutional framework appears increasingly questionable. Should such a power exist if neither the initiator is bound by the outcome nor the judiciary compelled to answer? What, then, is it for?
That said, it would be too simplistic to dismiss Article 143 as entirely obsolete. There remains a narrow but important constitutional function it could still serve — namely, as a pre-legislative vetting mechanism. Consider, for instance, a hypothetical but realistic scenario: a controversial amendment like the Waqf Amendment Act if 2025 passed by Parliament amidst public and legal criticism about its constitutionality. Upon receiving the bill, the President, rather than acting mechanically, could have invoked Article 143 and refer the matter to the Supreme Court. If the Court, in its advisory opinion, were to hold that the amendment is unconstitutional and would likely be struck down if challenged, the President could have withheld assent on principled grounds. In such a case, Article 143 performs a preventive, rather than corrective, function — it pre-empts the enactment of unconstitutional legislation and saves the polity from unnecessary constitutional conflict.
In fact, one could argue that this is precisely the kind of anticipatory constitutional function that State of Tamil Nadu v. Governor of Tamil Nadu indirectly gestured towards. Instead of allowing political controversy to mature into constitutional litigation, the President could — and perhaps should — use Article 143 to consult the Court before a legal crisis emerges
Conclusion
In conclusion, a few things are clear. First, the rationale behind introducing the advisory jurisdiction under the Government of India Act, 1935, no longer holds the same relevance in a post-constitutional landscape. The Indian Constitution, through practice and interpretation, has evolved in a way that renders the utility of Article 143 references increasingly questionable. Second, where the Supreme Court has already pronounced a binding judgment on a matter, a subsequent presidential reference under Article 143 raises serious concerns. It risks being perceived not as a genuine constitutional query, but as a mechanism to indirectly review or circumvent a final verdict through executive initiative.
In this light, the Court should decline to answer the present reference. Not only because such a course would preserve judicial finality and institutional integrity, but also because the constitutional structure provides no clear accountability mechanism for advisory opinions: the President is under no legal obligation to act upon them, and the Court is under no duty to issue one. The real question, then, is this: if such references are neither binding on the President nor obligatory upon the Court, what constitutional function do they genuinely serve today?