Article 143 of the Constitution of India: Supreme Court’s Advisory Jurisdiction Explained

Introduction

Article 143 confers advisory jurisdiction on the Supreme Court and provides for the power of President to consult the Supreme Court; it says that if it appears to the President that a question of law or fact has arisen, or can arise in future which is of public importance and it is beneficial to obtain the opinion of the Supreme Court, he may refer the question for consideration and the Court may, after such hearing report to the President its opinion.¹ Further, the President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion.²

The Supreme Court generally answers the questions of law or fact when raised by the parties, however, this Article confers a specific jurisdiction called the consultative or advisory jurisdiction, on the Supreme Court, to give its opinion on questions which are unconnected to some pending case.

Article 74(1) mandates the President to act in accordance with the aid and advise of his council of ministers. Therefore, though the reference may go in the name of the President, in reality, the reference is by the council of ministers. But the Supreme Court cannot verify or examine as to whether the reference is by the President himself or on the advise of the council of ministers in view of the constitutional bar contained in Article 74(2).

But if the President consults the Supreme Court under Article 143 in the absence of an advise from the council of ministers, he will be committing a violation of the Constitution for which he may be impeached³.

Recent Presidential Reference under Article 143

In a recent development, Smt. Droupadi Murmu, President of India raised concerns over the Supreme Court’s directive in State of T.N. v. Governor of T.N., 2025 SCC OnLine SC 770, regarding the setting of timelines for the assent of Bills under Articles 200 and 201 of the Constitution of India. The Supreme Court, in its judgment, sought to impose deadlines for the Governor and the President to act on the Bills passed by the State Legislature and Parliament, respectively.

Also Read: Constitutional scheme doesn’tgrant any ‘pocket/absolute veto’ to the President & Governor in discharge of functions under Arts 200/201: SC

The Court opined that the concept of a ‘pocket veto’ or ‘absolute veto’ has no place within the constitutional framework provided under Article 200 of the Constitution of India. Despite the absence of a prescribed time-limit, the Court emphasised that Article 200 cannot be interpreted in a way that allows the Governor to indefinitely withhold action on bills presented for assent, thereby obstructing the legislative process at the state level.

To address this issue, the Court prescribed a time-limit for the Governor’s exercise of powers under Article 200:

• In cases where the Governor withholds assent or reserves a bill for the President’s consideration based on the aid and advice of the State Council of Ministers, the Governor is expected to take action forthwith, but in any case, no later than 1 month.

• If the Governor withholds assent contrary to the advice of the Council of Ministers, the bill must be returned with a message within a maximum period of 3 months.

• Similarly, if a bill is reserved for the President’s consideration against the advice of the Council of Ministers, the Governor must make the reservation within a maximum period of 3 months.

• When a bill is presented for reconsideration following the first proviso, the Governor must grant assent forthwith, but within a maximum of 1 month.

Regarding Article 201, the Court clarified that there is no ‘pocket veto’ or ‘absolute veto’ available to the President in the discharge of functions under this Article. The use of the term “shall declare” makes it mandatory for the President to choose between two options: either granting assent or withholding assent to a bill. The constitutional scheme does not allow any constitutional authority to act arbitrarily. This means that any decision to withhold assent under Article 201 must be accompanied by the furnishing of reasons for such withholding.

In exercise of the powers conferred under Article 143(1) of the Constitution of India, the President, however, questioned whether such a timeline could be prescribed for actions that fall within the discretionary powers granted by the Constitution. Articles 200 and 201 give the Governor and President the authority to either grant assent, withhold it, or seek further consideration of the Bill. The controversy has sparked a debate about the limits of judicial interference in the executive’s powers and the balance of power between the Executive and the Judiciary in matters of constitutional procedure.

Also read: President questions SC on setting timelines on Governor and President’s powers under Articles 200 & 201 for Bill Assent

The President of India referred a series of crucial constitutional questions to the Supreme Court of India for its interpretation. The questions primarily concern the discretionary powers of the Governor and the President in relation to the assent of Bills under Articles 200 and 201 of the Constitution.

The key questions raised included:

1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?

2. Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?

3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?

4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?

6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?

7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?

8. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?

9. Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?

10. Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?

11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?

12. In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?

13. Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?

14. Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

*Did you Know? For the first time in history, President Murmu has turned to the Supreme Court for its opinion, making this the first instance during Prime Minister Narendra Modi’s tenure where the Supreme Court has been consulted under Article 143(1) of the Constitution of India.

Presidential Reference

The Supreme Court is well within the jurisdiction to answer/advice the President in a Reference made under Article 143(1) if the questions referred are likely to arise in future of such questions are of public importance or there is no decision of the Supreme Court which has already decided the question referred⁴

In Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1, it was held that, the use of the word “doubt” in reference is not required for maintainability thereof. Reference is not to be returned unanswered on ground of form or pattern alone. It requires appropriate analysis, understanding and appreciation of content or issue on which opinion of Supreme Court is sought by President, keeping in view constitutional responsibility, juridical propriety and judicial discretion. Reference should not be vague, general or undefined. It is only when questions become unspecific and incomprehensible that the risk of returning reference unanswered arises.

Whether opinion of Supreme Court under advisory jurisdiction will be binding on all the Courts in India under Article 141

On the question that whether opinion of Supreme Court under advisory jurisdiction will be binding on all the Courts in India under Article 141, Chandrachud, C.J. though held that the question may have to be considered more fully on a future occasion, however opined that it would be strange that a decision given by the Supreme Court on a question of law in a dispute between two private parties should be binding on all courts in the country, but the advisory opinion should bind no one at all⁵. This issue was again raised in Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2), wherein , it was opined that the advisory opinion is entitled to due weight and respect and normally it will be followed. Further, a 9-Judge Bench in the Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717 held that a report which may be made to the President in a reference under Article 143 is not binding on the Supreme Court in any subsequent matter wherein, in a concrete case the infringement of the rights under any analogous provision may be called in question, though it is entitled to great weight.

Is the Supreme Court bound to answer the reference?

The Supreme Court can refuse to express its advisory opinion if it is satisfied that it should not express its opinion, having regard to other relevant facts and circumstances, such as if the questions are purely socio-economic or political questions and have no relation to the Constitution ⁶

The only discretion the Supreme Court has is either to answer the reference or respectfully decline to send a report to the President⁷

In Kerala Education Bill, 1957, In re, 1959 SCR 995 , the Court opined that it is obligatory on the Supreme Court to entertain a reference and to report to the President it’s opinion if the reference is under article 143(2), but under clause (1), the Court has a discretion and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it.

But in Special Courts Bill, 1978, In re, (1979) 1 SCC 380 , the Court opined that the right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in clauses (1) and (2) of Article 143, in the sense that clause (1) provides that the court “may” report to the President its opinion on the question referred to it, while clause (2) provides that the court “shall” report to the President its opinion on the question. Even in matters arising under clause (2), though that question does not arise in this reference, the court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered.

Is the President bound by the advisory opinion of Supreme Court?

The marginal note of Article 143 reads “Power of President to Consult Supreme Court”. The word “consult” shows beyond doubt that the President is not bound to give effect to the opinion. Further, an opinion cannot be enforced or executed. Also, Article 142 which deals with the enforcement of decrees and orders of Supreme Court, and under clause (1) it states that only decrees and orders of the Supreme Court can be enforced. Since an opinion is neither a decree nor an order, it cannot be enforced.⁸

Therefore, the advisory opinion of the Supreme Court under Article 143 is not binding on the President⁹, though the President normally honours it, and sometimes the Court also takes the undertaking through the Attorney general that the President will honour it¹⁰

Some of the references made under Article 143(1) are as follows:

1. Delhi Laws Act, 1912, In Re, 1951 SCC 568

2. Kerala Education Bill, 1957, In re, 1959 SCR 995

3. Berubari Union (I), In re, (1960) 3 SCR 250

4. Sea Customs Act, S. 20(2), In re, (1964) 3 SCR 787

5. Powers, Privileges and Immunities of State Legislatures, In re, (1965) 1 SCR 413

6. Presidential Poll, In re, (1974) 2 SCC 33

7. Special Courts Bill, 1978, In re, (1979) 1 SCC 380

8. Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2)

9. Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter), (1993) 1 SCC 642

10. Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739

11. Special Reference No. 1 of 2001, In re, (2004) 4 SCC 489

12. Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237

13. Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1

14. Punjab Termination of Agreement Act, 2004, In re, (2017) 1 SCC 121

15. Jammu and Kashmir Resettlement Act in 1982

**Did you Know? In Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter), (1993) 1 SCC 642 the question of fact referred was “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi – Babri Majid?” Therefore, this is the only reference wherein the President referred a question of fact to the Supreme Court under Article 143(1).

Conclusion

As the Supreme Court deliberates on the important constitutional questions raised by President Murmu, the outcome will not only shape the understanding of executive powers but also set a precedent for the future of constitutional interpretation in India. This landmark reference under Article 143(1) highlights the ongoing dynamics between the Executive and the Judiciary, with the potential to redefine the balance of power within the country’s legal framework. As the nation awaits the Court’s opinion, the stakes are high, and the resolution of these issues will undoubtedly have a lasting impact on the functioning of India’s democratic institutions.