Presidential Reference under Article 143: A quiet force in constitutional evolution

In the first case, the Supreme Court may tender or may refuse to tender its opinion to the president. But, in the second case, the Supreme Court 'must' tender its opinion to the president. However, in both cases, the opinion expressed by the Supreme Court is only ‘advisory’ and not a judicial pronouncement. Hence, it is not binding on the president.

The first reference

On 23 May 1951, the first President of India, Dr Rajendra Prasad, used the power conferred to the President of India under Article 143 of the Indian Constitution and sought the opinion of the Supreme Court on the Delhi Laws Act, 1912. The act essentially had a provision which stated that “provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India.

The core issue was to determine the permissible extent to which legislative powers can be delegated to the executive.

Berubari Union case

After the Delhi Laws Act, 1912, the next big issue on which Dr Rajendra Prasad sought the apex court's opinion was in the Berubari Union case. The case focused on the issue of transferring part of Indian territory, Berubari Union (in West Bengal), to East Pakistan (now Bangladesh) under the 1958 Nehru-Noon Agreement.

This was one of the most consequential presidential references, which resulted in a landmark judgment. Can India transfer its territory merely through an agreement, or is a constitutional amendment required? These critical questions came to the forefront in the Berubari Case, which became a landmark in Indian constitutional history. The case also prompted the judiciary to clarify another long-standing doubt — the legal status of the Preamble to the Indian Constitution.

Until then, there was uncertainty over whether the Preamble was an integral part of the Constitution or simply a preface without legal force. The Supreme Court's opinion in this case provided much-needed clarity.

When SC declined to tender its opinion 

It is not that the apex court has always given its opinion when sought under Article 143 of the Constitution. On January 7, 1993, the President of India invoked Article 143 of the Constitution to seek the Supreme Court’s advisory opinion on whether a Hindu temple or any Hindu religious structure existed at the site before the construction of the Ram Janmabhoomi-Babri Masjid. However, in its majority decision delivered on October 24, 1994, the Court respectfully declined to answer the reference and returned it unanswered.

On policy matters and questions of maintainability of presidential reference. 

In 2012, the President of India sought the apex court's opinion on various issues arising out of the apex court’s judgment in the 2G Spectrum case, including whether auctioning of natural resources across all sectors is mandatory.

On the question of maintainability of presidential reference, The apex court made it clear the it would “respectfully decline to answer a reference if it is improper, inadvisable and undesirable; or the questions formulated have purely socio-economic or political reasons, which have no relation whatsoever with any of the provisions of the Constitution or otherwise are of no constitutional significance; or are incapable of being answered; or would not subserve any purpose; or there is authoritative pronouncement of this Court which has already decided the question referred.”

Led to formation of Collegium 

One of the most consequential presidential references resulted in a judgment that not only established the collegium system for the appointment of judges but also reinforced the independence of the judiciary. Popularly known as the ‘Third Judges Case’, it stemmed from a reference made in 1998 by President K.R. Narayanan, who sought the Supreme Court’s opinion on the correct interpretation of the word “consultation” as used in Articles 124 and 217 of the Constitution of India.

Article 124 (2) states:  Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose and shall hold office until he attains the age of sixty-five years

In the First Judges Case (1982), the Supreme Court held that the term ‘consultation’ did not mean ‘concurrence’ and merely implied an exchange of views between the executive and the judiciary. However, in the Second Judges Case (1993), the Court reversed its earlier position, ruling that consultation effectively meant concurrence. Thus, the advice tendered by the Chief Justice of India (CJI) was held to be binding on the President in matters of judicial appointments. The Court, however, added a crucial safeguard: the CJI must form his opinion only after consulting the two senior-most judges of the Supreme Court.

It was in the Third Judges Case, which arose from a presidential reference in 1998, that the Supreme Court institutionalised the ‘Collegium’ system. The Court clarified that the CJI's sole opinion does not amount to due consultation. Instead, the CJI must consult a collegium consisting of the four senior-most judges of the Supreme Court. Furthermore, if two judges in the collegium express dissent, the CJI should refrain from forwarding the recommendation to the government.

The power of the President to seek the advisory opinion of the Supreme Court under Article 143 of the Constitution is a significant constitutional tool. Over the years, this provision has played a crucial role in resolving some of the most complex and sensitive constitutional questions. Notably, the Third Judges Case, which arose from a presidential reference, proved to be a turning point in India’s constitutional journey. It institutionalised the collegium system for judicial appointments and, more importantly, strengthened the independence of the judiciary—a cornerstone of Indian democracy.

Article 143 has not only served as a means of constitutional clarification but has also helped shape the trajectory of India’s constitutional development in a way that continues to safeguard the foundational principles of justice and separation of powers.