India's Constitution: Present Tense, Future Tenser

Can the President acting on behalf of the Government seek to undo a judgment or a binding precedent of the Supreme Court by invoking the advisory jurisdiction of the Supreme Court under Article 143 of the Constitution?

Can the Supreme Court under the guise of expressing its view of the law in a “functional reference”, cripple the essential functions and functioning of the elected legislature under the Constitution?

Can the Supreme Court selectively re-write the Constitution while rendering its opinion to the constitutional office of the President of India?

Can a representative of the Union decide at his personal will and pleasure, and beyond the bounds of the Constitution, whether a validly enacted Bill should become law in a State?

Can the Supreme Court in its advice tendered under Article 143 overturn established principles of judicial review, especially when the same is an inseparable part of the basic structure of the Constitution?

These are the questions which will have to be referred for the advisory opinion of the Supreme Court under Article 143, as well as for judicial adjudication under Article 141 before the Supreme Court in the future.

And where do these arise from? From the recent opinion of the Court in the presidential reference answered in a considerably short time in - In Re: Special Reference No. 1 of 2025, dated November 20, 2025 (2025 LiveLaw (SC) 1124), which has not only raised eyebrows, but also more questions than it has answered, and done long-lasting damage to India's constitutional framework. That the Presidential Reference to the Supreme Court under Article 143 was made in the wake of a binding precedent on the very same question of law answered by the two-judge Bench, would show that the reference was an attempt to obtain a different answer. As much as the President enjoys wide discretion is making the reference, the Supreme Court was endowed with discretion to have denied rendering its opinion in the light of the Cauvery Water Disputes Tribunal Reference (1993) Supp (1) SCC 96, where it has been stated, rather unambiguously, that when the Court has already adjudicated upon a matter and rendered its authoritative findings, the President should find her answers in the said decision to understand the true position on the question of law. The Court however entertained it and christened it as a 'functional reference'.

In this opinion, the Court, while using a sledgehammer to crack a nut, has caught itself in the vortex of a constitutional storm. It has given up the most cherished principle of judicial review by stating that the exercise of the powers of the President and the Governor under Article 201 and 200 at a stage prior to the Bill becoming a law, is not justiciable; it has re-written the Constitution by saying that the Governor is not bound by the aid and advice of the Council of Ministers in exercise of his powers under Article 200; it has adversely commented upon the judgment of the Court in State of Punjab v. Governor of Punjab (2023), and overturned the directives of the Court in State of Tamil Nadu v. Governor of Tamil Nadu (April 8, 2025) on deemed assent, and on laying time-lines for exercise of the power of the Governor and the President under Articles 200 and 201 of the Constitution, though such directives were based on constitutional history, reports of the Sarkaria and Punchhi Commissions, as also the First Administrative Reforms Commission, 1966 and Rajamannar Commission, 1971 Commission Reports, previous binding precedents, the Office Memorandum of the Ministry of Home, Government of India itself, and faced with an extraordinary case of brazen display of intransigent behaviour that neither behoved the constitutional office of the Governor, nor was envisioned or imagined by the framers of the Constitution who reposed unflinching faith in such high office that they did not deem it fit to mention specific timelines in the constitutional text. The directive of 'deemed assent' in the State of Tamil Nadu case was necessitated by the finding that once the Bill is presented again to the Governor after reconsideration, the Constitution makes it imperative for him to assent to the Bill and is left with no other option. In the instant case, the Governor had defiantly sat over the re-presented Bill disregarding the constitutional mandate under Article 200.

The advisory opinion is riddled with contradictions, against the letter, text and spirit of the Constitution, and more importantly against the very foundational ideals of federalism and judicial review, that form part of its basic structure, without which the identity of India as a democratic republic with a written Constitution, and an independent judiciary as the supreme interpreter of the Constitution, will be decimated, and the delicate balance of powers, violated. Adopting a parsimonious and short-sighted approach in constitutional interpretation, the Court has tied itself into knots while on the one hand stating that the constitutional office of the Governor and the President are subject to the jurisdiction of the Court, and acknowledging the possibility of glaring instances of delay or inaction by the Governor and stating that the Court can issue a limited Mandamus to the Governor to exercise his power under Article 200 within a reasonable period of time, having chosen not to express its view on the exercise of the powers of the President under Article 201 (See Paragraph 52), and on the other hand, holding that any action or decision of the Governor or the President on a Bill before it becomes law, is not justiciable. This opinion or view of the law is myopic and does not account for situations where assent may be refused arbitrarily, thereby undermining the authority of the legislature. Decisions of the Governor and the President under Article 200 and 201 include- action, in the form of assent or its withholding, as also inaction in terms of -no action, and more particularly in the context of the President, includes negative action, that is, refusal to give assent even after the Bill is presented again to the President after having been reconsidered and passed by the Legislature of the State with or without amendment as recommended in the message of the President while returning the Bill to the Governor with a direction to return the Bill to the House(s) of Legislature. Also, there is nothing in the Constitution that can permit the Governor to exercise his option of reserving the Bill for the consideration of the President after he has once returned the bill to the Legislature and which thereafter has been passed with or without amendment and has been presented again to the Governor. In our constitutional scheme, every action of every public, and constitutional authority is justiciable. The principle that the decision of the President and Governor on merits is beyond the purview of judicial review cannot take away judicial review on the process of decision making, including on whether it has been arrived at on legally tenable material and application of mind accordingly. Here, it is pertinent to mention that the Supreme Court has held that even in cases of the exercise of power of the President under Article 72 and that of the Governor under Article 161, judicial review cannot be said to be thrown out completely, and that while the Court cannot sit in appeal on the merits of the decision, the Court can interfere if it is shown that the decision was made without application of mind, is patently arbitrary, malafide, or based on irrelevant or extraneous consideration. (See Maru Ram v. Union of India (1981) 1 SCC 107, Kehar Singh v. Union of India (1989)1 SCC 204, followed subsequently in various decisions).

By denuding itself of the power of judicial review of the exercise of power by the President and the Governor at the stage before the Bill has become law, the Court has been in oblivion of the dangerous possibility of the shield held by this esteemed office, metamorphosing into a sword that was never intended by the Constitution to be handed to the Governor. The immunity offered to this high office is not to be interpreted as impunity. The role of the Governor is one of balancing power with responsibility and he essentially walks the constitutional tightrope in order that he may uphold the supreme ideal of the rule of law in the parliamentary democracy that we, the people, have given to ourselves.

The words of Justice V.R.Krishna Iyer resonate with relevance when he said that the omnipotence of the President and of the Governor at State level must be exercised in a manner “vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture - lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the head of State”.

(The author is an advocate practicing at the Madras High Court and the Supreme Court of India)

Views Are Personal.