India’s Constitution in Present Tense: Article 143 of the Indian Constitution, Advisory Opinions, and the Future of Judicial Review

Introduction:

The advisory jurisdiction of the Supreme Court under Article 143 of the Indian Constitution was designed as a restricted constitutional mechanism, intended to aid the President on matters of law or fact of public significance, not to disturb established law or undermine fundamental constitutional principles. However, the recent advisory opinion in In Re: Special Reference No. 1 of 2025 (Nov. 20, 2025) has sparked significant constitutional discourse, posing issues much more serious than the reference alone. 

Central to the debate is a concerning question: is it possible for a Presidential reference to indirectly overturn binding Supreme Court precedents under Article 141? The reference was made even though there was an established authoritative judicial ruling on the identical issues, indicating an effort to seek an alternative response via the advisory path, something the Court expressly warned against in the Cauvery Water Disputes Tribunal Reference (1993). 

From Advisory Opinion to “Functional Reference”: Is the Scope of Article 143 of the Indian Constitution Expanding? 

In engaging with the reference and designating it a “functional reference,” the Supreme Court not only deviated from its previous self-imposed limitations but also ventured into areas that could obscure the distinction between constitutional interpretation and constitutional re-engineering. 

Most importantly, the Court determined that the President's and Governor's actions under Articles 200 and 201, prior to a Bill becoming law, are non-justiciable. This conclusion represents a significant shift from established doctrine and seems to undermine judicial review, a principle historically acknowledged as integral to the Constitution's basic structure. 

Are Legislative Supremacy and Federal Balance Being Eroded? 

The advisory opinion rendered under Article 143 of the Indian Constitution also raises serious concerns regarding federalism and legislative power. It effectively enables a constitutional official to postpone or refuse assent without significant judicial review, even when the Constitution requires assent, such as when a Bill is re-presented after reconsideration by the State Legislature. 

By reversing or softening the directions laid down in State of Tamil Nadu v. Governor of Tamil Nadu concerning timelines and deemed assent, the Court has diluted safeguards specifically designed to prevent constitutional obstinacy. Those safeguards were firmly grounded in constitutional history, commission reports, executive practice, and established precedent. 

Claiming that assent-related decisions under Article 143 are insulated from judicial review disregards a long-settled constitutional distinction: while courts may not evaluate the merits of executive discretion, they are fully empowered to examine the decision-making process, particularly where arbitrariness, mala fides, or non-application of mind is alleged. This principle applies even to the exercise of clemency powers under Articles 72 and 161, areas far more sensitive and constitutionally entrenched, and therefore cannot logically be excluded in matters concerning gubernatorial assent. 

Does Immunity Mean Impunity? 

The Constitution did not anticipate the Governor or President as veto players possessing unlimited discretion. Their constitutional immunity aimed to safeguard dignity, not to grant impunity. By protecting pre-assent actions from judicial review, the Court may turn a constitutional defense into a constitutional weapon, one that can impede elected legislatures and undermine democratic accountability. 

The internal inconsistencies in the advisory opinion heighten the worry: it recognizes that constitutional authorities fall under judicial jurisdiction and that mandamus can be issued for undue delays, yet it claims that their assent-related actions are non-justiciable. This stance weakens consistency in constitutional interpretation. 

What Warning Does Constitutional History Offer? 

Justice V.R. Krishna Iyer’s warning resonates with increased significance: when constitutional power becomes personal and lacks accountability, it can undermine representative democracy. If unelected authorities can indefinitely suppress legislative will without judicial review, elections may turn into mere symbolic acts rather than true reflections of popular sovereignty. 

What Is the Way Forward? 

Special Reference No. 1 of 2025 has revealed a constitutional divide arising within the framework of Article 143 of the Indian Constitution, which empowers the President to seek advisory opinions from the Supreme Court. These issues require meticulous rectification, whether through future advisory reassessment under Article 143 or through definitive adjudication under Article 141 of the Indian Constitution. Judicial review, federal balance, and legislative primacy are not merely procedural aids; they are essential structural safeguards. 

If constitutional interpretation under Article 143 overlooks these limitations, the fundamental structure of India’s democratic republic itself may stand at risk. 

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