The Supreme Court, through its five-judge Constitution bench, is currently hearing the reference made by President Droupadi Murmu — after a two-Judge bench fixed timelines for the President and Governors to act on Bills sent by State Legislatures. The Supreme Court has asked the Centre if a Governor has unlimited power to withhold a Bill for time immemorial, then what is the safeguard for a duly elected legislature.
Key takeaways:
1. President Droupadi Murmu has invoked the Supreme Court’s advisory jurisdiction on whether timelines could be set for the President and Governors to act on Bills passed by state Assemblies. The President has made a 14-point reference to the Supreme Court. You can read those questions here.
2. Under Article 143(1) of the Constitution, the President may refer a “question of law or fact” to the Supreme Court for its opinion. The opinion, unlike a ruling, is not binding.
3. The reference was made in May after the SC’s April 8 ruling in which it fixed a three-month deadline for the President to clear Bills reserved for her consideration by the Governor. That ruling, by a two-judge Bench headed by Justice J B Pardiwala, set aside Tamil Nadu Governor R N Ravi’s decision to withhold assent to 10 pending Bills.
Want to know about the Supreme Court ruling in the Tamil Nadu governor’s case read here.
4. The advisory jurisdiction of the Supreme Court under Article 143 is derived from the Government of India Act, 1935 which provided the power to the Governor-General to seek the opinion of the Federal Court on questions of law to questions of fact as well, including certain hypotheticals.
5. Article 145(3) requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion. Under the Constitution, the President acts on the aid and advice of the Cabinet. The advisory jurisdiction allows her the means to seek independent advice to act on certain constitutional matters.
6. This power has been invoked by the President on at least 15 occasions since 1950. Notably, in two cases the Supreme Court has returned references without any answers. Highlighting that it is the prerogative of the Supreme Court to provide answers to the reference made by the President.
7. The two references that were returned without answering were:
🔵 In 1993, then President Shankar Dayal Sharma asked the SC “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid…in the area on which the structure stood.”
The SC unanimously refused to answer this as a civil suit on the dispute was already pending before the courts.
🔵 The SC did not answer a 1982 reference made by President Giani Zail Singh on the constitutionality of a proposed law that sought to regulate the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947 and May 14, 1954 to Jammu and Kashmir.
- 01
What is Article 143 of the Constitution?
It provides power to the President to consult the Supreme Court.
143 (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.
- 02
What is Article 145 (3) of the Constitution?
The article provides that “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five.”
- 03
What does Article 145 (4) say?
It says “ No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court.” It means the judgment and advisory note made by the Supreme Court in regards to reference under Article 143 shall be in open court.
BEYOND THE NUGGET: Jurisdiction of the Supreme Court
1. The 14 questions which are referred to by the President are mostly drawn from the April 8 ruling, but are not limited to it. The last three questions raise larger issues on how the SC exercises discretionary powers provided by the Constitution.
2. The Supreme Court has original, appellate, and advisory jurisdiction.
Original jurisdiction: Article 131 states that “subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute.”
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
3. Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court for enforcement of Fundamental Rights. The SC is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
4. The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) (civil matters) or 134 (criminal matters) of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial question of law as to the interpretation of the Constitution.
5. A wide appellate jurisdiction has been provided to the SC over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
Post Read Questions
(1) The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its (UPSC CSE 2014)
(a) advisory jurisdiction
(b) appellate jurisdiction
(c) original jurisdiction
(d) writ jurisdiction
(2) Consider the following statements:
1. Article 143 provides advisory jurisdiction to the Supreme Court.
2. The advisory judgement of the SC on the matter referred by the President is binding in nature.
Which of the statements given above is/are correct?
(a) 1 and 2
(b) 1 only
(c) 2 only
(d) None
(Sources: Presidential Reference hearing | Solution to Governor withholding Bills political, not judicial: SG to SC, What is recourse if Governor keeps Bills pending, asks Supreme Court, After President Murmu seeks advisory opinion from SC, can court overturn its R N Ravi decision?)
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The presidential reference hearing is ongoing before a five-judge Constitution bench of the Supreme Court. (File image) 
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