Presidential Reference once again brings Parliament–Judiciary supremacy tussle to the fore

Though the case raises several significant constitutional questions, at its core lies a single issue: can the Supreme Court place limits on the powers of the Executive and the Legislature in certain areas?

Seventy-five years after the Indian Constitution came into force, and nearly eight decades since Independence, one question still fuels debate: who truly holds the upper hand in India’s democracy—the Parliament or the Supreme Court.

While the Parliament is seen as the expression of the sovereign will of the people, the Supreme Court is considered the ‘custodian’ of the Republic’s founding charter, drafted by its framers not merely as a guide for governance, but as a bulwark against the arbitrary exercise of state power.

The question of whether the Supreme Court can restrain Parliament, and whether Parliament or the Executive may, through legislation or executive action, transgress the spirit of the Constitution, has been the subject of enduring debate and repeated judicial scrutiny, resulting in several landmark judgments.

From the very first constitutional amendment to the recent Presidential Reference challenging the Court’s authority to impose timelines on the Governor and President under Articles 200 and 201, the issue remains unresolved.

Presidential Reference: Backstory

In the recent case, President Droupadi Murmu, in a 14-point reference to the Supreme Court under Article 143 of the Indian Constitution, has asked the Court whether the judiciary can set a timeline of three months for the President to make a decision on the Bill reserved to her by the Governor under Article 201 when there is no such "constitutionally prescribed timeline.

The reference was made following the Supreme Court judgment in the Tamil Nadu Governor case delivered on April 8. It was through this judgment that the Supreme Court set time limits for the decisions by the Governors under Article 200 of the Constitution on the bills sent to them by the State Legislative Assemblies.

Though the case raises several significant constitutional questions, at its core lies a single issue: can the Supreme Court place limits on the powers of the Executive and the Legislature in certain areas?

Supreme Court’s remit

While judicial intervention in matters perceived as the exclusive domain of the Executive is often labelled as “judicial overreach,” the Court cannot abdicate its constitutional duty as the final interpreter of the Constitution. This becomes especially evident when an organ of the State itself—such as in the case involving the Tamil Nadu Governor—or the President, acting under constitutional mandate, seeks the Court’s advice. In such circumstances, judicial scrutiny is not an encroachment but a fulfilment of the role envisaged for the Supreme Court by the Constitution.

In recent times, one of the strongest assertions of parliamentary supremacy came from former Vice President Jagdeep Dhankhar. Speaking at a Delhi University event in April 2025, he declared that “there is no entity above Parliament,” describing it as the embodiment of popular sovereignty. He likened each citizen to an “atom in democracy,” whose collective “atomic power” is exercised through elections—underscoring his view that Parliament derives its supremacy directly from the will of the people.

Dhankar’s remarks drew immediate response from Senior Advocate and Rajya Sabha member Kapil Sibal. While countering Dhankar’s assertion, Sibal said in a X post, “The law: Neither Parliament nor the Executive is supreme, the Constitution is supreme. The provisions of the Constitution are interpreted by the Supreme Court. That’s how this country has understood the law so far!”

Long history of parliamentarians asserting superiority

It is not merely with the passage of time that the State has sought to assert its authority; even India’s first Prime Minister, Jawaharlal Nehru, voiced support for the principle of parliamentary supremacy. Nehru, who was perhaps the most influential member of the Constituent Assembly, which brought the Indian constitution into existence on 10 September 1949, while speaking in the Constituent Assembly, said: “Within limits, no judge and no Supreme Court can make itself a "third chamber". No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of Parliament.”

He was clearly talking about the need and importance of parliamentary supremacy.

Ever since the enactment of the Constitution in 1950, India has witnessed a continuous struggle between the judiciary and executive to rein in each other, with episodes that culminated in acrimonious turf wars.

Lessons from the first constitutional amendment still echo

Within a few months of the enactment of the Constitution, the Nehru government faced a slew of adverse court orders against some of its decisions like that of land reforms. The government reacted by bringing in the first constitutional amendment act in 1951. The purpose was straightforward and evident. The government wanted to shield its reform agenda from judicial interventions.

Tripurdaman Singh, who has done a coruscating analysis of the First Amendment in his book ‘Sixteen Stormy Days: The Story of the First Amendment to the Constitution of India’, writes, “A major problem for the Congress, as Nehru stated in a note to the Home Ministry, was explaining the situation to the people. Having raised their expectations and asked them to believe in the promises of Congress leaders, how were they to now go back to them and explain legal and constitutional niceties?”.

Judiciary’s assertion of its interpretative supremacy

From the articulation of the Basic Structure doctrine to the establishment of the collegium system, the judiciary has frequently been perceived as asserting powers not expressly envisaged by the framers of the Constitution.

On the other hand, starting from the creation of the Ninth Schedule and successive constitutional amendments—most notably those enacted during the Emergency—have been viewed as attempts by the Executive and Parliament to restrain judicial authority.

Jurists argue that this perceived binary stems from the assumption that the Supreme Court, as custodian of the Constitution and the final interpreter of constitutional amendments and laws, is itself supreme. In reality, the Court’s authority flows not from any independent supremacy, but from its role as interpreter of the Constitution—the document that remains the ultimate source of power.

While this may be a valid technical explanation, the fact remains that power is not exercised in abstraction—it rests in the ability to influence, shape, and ultimately determine outcomes. In this sense, the contest between Parliament and the Supreme Court is less about formal supremacy and more about which institution wields greater authority in shaping the direction of constitutional governance.

Fali Nariman, while commenting on this issue, wrote: “People must know, in simple and effective terms, what the law says, what it permits, and what it prohibits. There is no mystery about the law. There should not be.”

So long as this contest remains anchored in the shared objective of safeguarding the spirit of the Constitution, it serves as a necessary check within the democratic framework. The concern arises, however, when the contest degenerates into a turf war between institutions, shifting focus from constitutional loyalty to institutional supremacy. It is at that point that the balance envisioned by the framers begins to erode, threatening the very principles both Parliament and the judiciary are meant to protect.