Article 143 (1) back in focus: Can President Murmu's questions overturn Supreme Court order on Tamil Nadu bills?

President Droupadi Murmu has invoked the Supreme Court’s advisory jurisdiction

A month after the Supreme Court's landmark verdict in a case filed by the Tamil Nadu government, challenging the pendency and subsequent refusal to approve bills before the Governor, President Droupadi Murmu has sought the Supreme Court's opinion under Article 143 (1) of the Constitution.

Murmu’s decision to seek the top court’s advisory on critical constitutional questions marks a rare and significant moment in India’s constitutional jurisprudence.

What is Article 143(1)?

Article 143(1) allows the President to seek the Supreme Court's opinion in matters of legal and public importance. A Constitution bench must be constituted to answer the President's reference.

The reference begins by outlining the purpose of Articles 200 and 201. It then says that the provision does not stipulate a timeline for the Governor and President to act on a bill

Is the top court bound to answer the President's reference?

According to guidelines, the top court is not bound to give an opinion on the presidential reference.

The court may “refuse to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions forwarded to it and having regard to the other relevant facts and circumstances,” as held in Special Reference No. 1 of 1964, according to Live Law.

The Supreme Court has only returned a Reference unanswered till now. This was in relation to the Ayodhya-Babri Masjid dispute (Special Reference 1 of 1993).

Court cannot sit in appeal

A legal issue already decided by the top through its judicial authority cannot be brought before it again via a reference under Article 143. The court cannot sit in appeal over its prior judgments in its advisory capacity, as clarified in the Cauvery dispute reference (1992).

The court may also decline to offer an opinion if the referred questions are deemed purely political or socio-economic and lack constitutional relevance, as in the M Ismail Faruqui reference (1995).

Why did President Murmu raise questions?

In her communication to the top court, President Murmu asked whether Governors are bound to act on the advice of the Council of Ministers when a Bill is placed before them under Article 200 of the Constitution. She also asked whether the discretion exercised by a Governor in such cases can be challenged in court.

Citing Article 361, which provides immunity to the President and Governors from court scrutiny for actions taken in office, Murmu asked, “Is the Governor bound by the aid and 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?”

She has also asked whether timelines and procedures could be imposed by courts when none are explicitly provided in the Constitution.

Vice President Jagdeep Dhankar had also referred to Article 142 as “a nuclear missile against democratic forces” and questioned its increasing use by the judiciary, adding that it appeared “available to the judiciary 24x7”.

What is the relation with the Tamil Nadu case?

A Supreme Court bench of Justice JB Pardiwala and Justice R Mahadevan used its special powers under Article 142 to intervene in a standoff between the DMK-led Tamil Nadu government and Governor RN Ravi. The Governor had stalled the approval of 10 Bills, which the court said was “illegal and arbitrary.” The court termed withholding of the bills “illegal" and "liable to be set aside". The bench criticised the "pocket veto" used by Governor Ravi to delay the Bills.

This ongoing exchange between the executive, the judiciary, and the legislature once again raises concerns about the separation of powers in India.

Tamil Nadu chief minister M K Stalin has written to his eight counterparts in non-Bharatiya Janata Party (BJP) ruled states, urging them to oppose the Presidential Reference sought by the Union before the Supreme Court.

The CM sought their cooperation to “evolve a coordinated legal strategy before the court and present a united front”.

“Is the BJP seeking to legitimise its Governors’ obstruction by allowing indefinite delays in Bill assent? Does the Union government intend to paralyse non-BJP State Legislatures?” he had asked earlier.