Can The President Be Forced To Seek Supreme Court Opinion On A Bill Under Article 143?

By Abhinav.Chandra Views: 27548

Executive Summary
This Article examines whether the President of India can be compelled to seek the Supreme Court's advisory opinion on a bill under Article 143 of the Constitution, in light of recent Supreme Court observations urging such referrals and the ensuing debate on judicial overreach. The analysis is based on constitutional provisions, judicial precedents, and recent legal developments.

No Mandatory Obligation: Article 143 grants the President discretionary power to seek the Supreme Court's opinion on questions of law or fact of public importance. There is no constitutional mandate forcing the President to do so.
Supreme Court's Stance: In a recent judgment (April 8, 2025, State of Tamil Nadu v. Governor of Tamil Nadu), the Supreme Court suggested that the President "ought to" seek its opinion under Article 143 when a bill is reserved by a Governor on grounds of perceived unconstitutionality. However, this is advisory, not binding.
Judicial Overreach Debate: The Court's proactive suggestion and imposition of timelines for presidential action have sparked criticism for encroaching on executive and legislative domains, potentially undermining the separation of powers.
Practical Implications: While the Court's opinion under Article 143 is non-binding, its persuasive value is significant. However, mandating referrals risks overwhelming the Court and blurring constitutional roles.
Conclusion: The President cannot be forced to seek the Supreme Court's opinion, but judicial encouragement to do so reflects an evolving constitutional dynamic, raising questions about checks and balances.

Introduction
The question of whether the President can be compelled to seek the Supreme Court's opinion on a bill under Article 143 arises from a recent Supreme Court judgment urging such referrals for bills reserved by Governors on constitutional grounds. This has ignited a debate on whether the judiciary is overstepping its constitutional boundaries, prompting accusations of judicial overreach. This report analyses the legal framework, judicial precedents, and implications of the Court's stance, providing insights into the balance of power between the executive, legislature, and judiciary.

Research Objective: To determine whether the President is legally obligated to seek Supreme Court advice under Article 143 and evaluate the implications of the Court's recent urging in the context of judicial overreach concerns.

Legal Framework

A. Article 143 of the Constitution of India

Article 143 empowers the President to consult the Supreme Court on matters of public importance:

Clause (1): "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon."
Clause (2): Allows the President to refer disputes under Article 131's proviso, where the Court is obligated to provide an opinion.

Key Features:

The term "may" in Clause (1) indicates discretion, not obligation.
The Supreme Court's opinion under Article 143 is advisory, not binding on the President.
The Court has discretion to decline answering under Clause (1) but must answer under Clause (2).
Article 143 does not explicitly mention bills or their constitutionality, leaving the scope of referrals broad.

Article 200 and Article 201: Governor and President's Roles in Bills

Article 200: When a state legislature passes a bill, the Governor may assent, withhold assent, or reserve it for the President's consideration.
Article 201: If a bill is reserved, the President may assent, withhold assent, or direct the Governor to return the bill to the legislature with suggestions. No time limit is prescribed, and reasons for withholding assent are not mandatory.
Interplay with Article 143: The President's decision on reserved bills could involve constitutional questions, potentially triggering an Article 143 referral, but the Constitution does not mandate it.

Recent Supreme Court Judgment (April 8, 2025)

In State of Tamil Nadu v. Governor of Tamil Nadu

The Supreme Court addressed delays by the Tamil Nadu Governor in acting on bills and the President's subsequent withholding of assent. The judgment made significant observations:

Urging Article 143 Referrals:

The Court stated that when a Governor reserves a bill on grounds of "perceived unconstitutionality," the President ought to seek the Supreme Court's opinion under Article 143.
This ensures judicial scrutiny of a bill's constitutionality and safeguards democratic principles.
The Court cited the Sarkaria and Punchhi Commissions, recommending referrals for patently unconstitutional bills.

Timelines and Accountability:

The Court imposed a three-month deadline for the President to act on reserved bills.
If the President withholds assent contrary to the Court's Article 143 advice, cogent reasons must be recorded.

Rationale:

Absence of state-level judicial advice mechanisms necessitates presidential referrals.
Pre-enactment judicial review could prevent unconstitutional laws and mitigate bias or mala fides.

Outcome:

The Court deemed 10 Tamil Nadu bills to have received assent under Article 142 due to the Governor's "illegal" delay.

Significance:

The Court's strong recommendation for Article 143 referrals and timelines signals a proactive judicial stance.

Can the President Be Forced to Seek a Supreme Court Opinion?

Constitutional Analysis

Discretionary Power: Article 143(1) uses "may," indicating that referrals are discretionary.
Executive Autonomy: Under Article 74, the President acts on ministerial advice. Forcing referrals would infringe Cabinet prerogative.
Judicial Limitations: The Court cannot compel the President to exercise discretion.

Judicial Precedents

In re Kerala Education Bill, 1957: Reinforced the non-mandatory nature of Article 143 referrals.
In re Special Courts Bill, 1978: Upheld advisory jurisdiction but emphasized non-binding nature.
Ismail Faruqui v. Union of India (1994): Demonstrated that even referred questions may be declined.

Inference: No precedent suggests that Article 143 referrals can be compelled.

Practical Considerations

Volume of Bills: Mandatory referrals could overwhelm the Court.
Non-Binding Nature: Opinions under Article 143 may be disregarded if reasons are provided.
Policy Considerations: Presidential decisions may involve non-legal considerations.

Conclusion: The President cannot be legally forced to seek an Article 143 opinion.

Debate on Judicial Overreach

Arguments Supporting Judicial Overreach

Redefining Executive Roles: Timelines and recommendations effectively amend Articles 200 and 201.
Undermining Separation of Powers: Judicial pressure on presidential discretion sidelines ministerial advice.
Precedent for Overreach: Article 142 usage criticized in past cases for judicial activism.
Kerala Governor's Critique: Judgment called "judicial overreach" and "excessive interference."

Arguments Against Judicial Overreach

Constitutional Safeguard: Court's actions prevent misuse and uphold federalism.
Judicial Review: Timelines ensure justiciable accountability.
Precedent-Based Approach: Supported by Sarkaria and Punchhi Commissions.
Balancing Federalism: Enables states to challenge presidential inaction.

Analysis

Overreach Concerns Valid: Actions blur judicial-executive boundaries.
Justification Holds Weight: Aims to ensure accountability and prevent misuse.
Middle Ground: Court could stop at striking delays without prescribing actions.

Conclusion: The urging of Article 143 referrals is activist but not outright overreach.

Implications and Insights

Strengthened Judicial Role: Judiciary now influences legislative process more actively.
Federalism Reinforced: State autonomy bolstered through judicial remedies.
Separation of Powers at Risk: Executive discretion may be undermined.
Practical Challenges: Routine referrals could overburden courts.
Public and Political Debate: Judgment has divided opinion across the spectrum.

Insight: A fine balance is required between judicial advice and executive autonomy.

Recommendations

Judicial Restraint: Avoid directing executive discretion under Article 143.
Legislative Clarity: Amend Articles 200 and 201 to specify timelines and criteria.
Executive Accountability: Require reasons for bill actions to increase transparency.
Constitutional Review: A larger bench should clarify limits of judicial suggestion.
Public Discourse: Encourage stakeholder debate to delineate constitutional roles.

Conclusion
The President of India cannot be legally compelled to seek the Supreme Court's opinion on a bill under Article 143, as the provision is discretionary. The Supreme Court's recent urging in the Tamil Nadu case, while not mandatory, exerts normative pressure on the President to consult the Court when bills are reserved for constitutional reasons. This stance, coupled with timelines and the use of Article 142, has sparked legitimate concerns about judicial overreach, though it is grounded in the intent to safeguard constitutional and federal principles. The debate highlights the delicate balance of power in India's constitutional framework, necessitating restraint and clarity to preserve democratic integrity.

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