Presidential Reference: SC Issues Notice to Union and States on Powers of President and Governor

Bench: CJI Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice Atul S Chandurkar.

Contextual Overview: 

On Tuesday, July 22, 2025, a constitution bench of five judges from the supreme court sent notices to the union and all state governments regarding a presidential reference that seeks clarification on the court's authority to set timelines and establish guidelines for the actions of governors and the president. ew.review. The presidential reference poses important constitutional issues about whether court decisions can set time limits and dictate how the president and governors should exercise their authority under articles 200 and 201 of the constitution when there are no constitutionally defined timelines or procedures for a governor's use of powers.

What is Presidential Reference?

As per Article 143 of the Indian Constitution, the president may refer any question of law as well as a fact of public importance to the apex court for its opinion. The president made such a reference based on the advice of the Union Council of Ministers. Furthermore, Article 145(3) of the Indian Constitution states that any such references shall be heard by a bench of at least 5 judges. If the Supreme Court provides an opinion after such hearings, that opinion will not be legally binding on the president and does not hold any presidential value for the courts to follow in subsequent cases; it carries a strong persuasive value and is usually followed by the executive and courts.

In a landmark move, the President of India has issued a Presidential Reference under Article 143(1) to the Supreme Court, seeking clarity on the constitutional powers of the President and Governors. The Supreme Court has accordingly summoned responses from both the Union and State Governments.

Considered agreement in the Tamil Nadu matter:

The president's initiative to gain clarity through the apex court's advisory role stems from an April 8 ruling by a Supreme Court bench comprising Justices J. B. Pardiwala and R. Mahadevan in response to a petition from the Tamil Nadu government contesting the state governor's postponement in approving 10 re-passed bills along with his later decision to hold them for the president's review. The bench of two judges determined that the governor's action was unlawful; this resulted in the automatic annulment of the president's choice to approve one of the 10 bills while dismissing seven and overlooking two others. The judgement written by Justice Pardiwala referenced Article 142 of the constitution to declare that all 10 bills received approval. The reference has now requested the court's view on the precise parameters and extent of Article 142.

Questions regarding the scope of Article 142:

Is it possible for a judicial order invoking Article 142 to replace the constitutional powers of the president/governors ? Is Article 142 restricted to procedural law issues, or does it also encompass directions that contradict or are at odds with current substantive or procedural clauses of the constitution? It enquired by indirectly challenging the legitimacy of the deemed assent. The reference enquired if a law passed by a state legislature could truly be regarded as a law in force without the governor's approval. Are the actions of the governor and the president, according to articles 200 and 201, respectively, subject to judicial review before the bill in question is enacted into law? Can the courts engage in judicial review of a bill's contents in any way before it is enacted into law? Enquired about the presidential reference. It stated that the idea of presumed agreement between the president and the governor mentioned in the verdict was foreign to the constitutional framework and served to limit the authority of the president and governors significantly. Vice President Jagdeep Dhankar referred to Article 142 as a nuclear weapon aimed at democratic forces.

‘Governor breached the Constitution’:

Justice Pardiwala clarified in his ruling that Article 142 was utilised solely to achieve complete justice in the public interest for the citizens of Tamil Nadu. We are not exercising our authority under Article 142 lightly or without careful consideration. Conversely, it was only after thorough discussions and having arrived at the definite conclusion that the governor's actions - first, in showing extended inaction on the bills; second, in outright withholding assent and returning the bills without any message; and third, in reserving the bills for the president a second time—were all in blatant breach of the procedure outlined in the constitution, the judgement explained.

Challenges two-judge bench decision:

The presidential reference has also prompted enquiries about a two-judge bench of the supreme court delivering judgements on significant legal questions concerning the constitution's interpretation without consulting a minimum five-judge bench as mandated by article 143 of the constitution. The reference has also addressed the fundamentals of Article 200, requesting the court to explain the constitutional choices available to a governor when a bill is submitted to him under Article 200. The letter from April 8 clearly stated that a governor has three options in this matter: grant assent, refuse assent, or reserve a bill for the president's review. The court emphasised that a governor cannot postpone a decision on a bill indefinitely, as it reflects the will of the people. Once more, the presidential reference requested the court's view on whether a governor is obligated to follow the aid and advice provided by the council of ministers as per article 200. The ruling explicitly indicated that governors generally are required to follow the guidance of the state cabinet as per Article 200 when making decisions on bills.

Barrier to Judicial Review?

The reference has questioned whether the constitutional discretion of governors and the president under articles 200 and 201, respectively, is even subject to judicial review, It asserted that there were divergent rulings from the Supreme Court. Does Article 361 of the constitution, which provides presidents and governors immunity from legal action during their term, completely prevent judicial review concerning a governor's actions under Article 200?

The presidential reference Justice Pardiwala addressed this issue by referencing the court's previous rulings. The immunity established in Article 361 of the constitution does not in any way prevent or restrict the courts from examining the actions of the governor, which would necessarily encompass his actions under Article 200 as well. 

The Supreme Court stated in its judgement on April 8 the presidential reference is from May 13, marking the final working day of Justice Sanjiv Khanna as the chief justice of India, and the current chief justice is now tasked with establishing a constitution bench to review the presidential reference.

Conclusion:

The Supreme Court's decision signifies a crucial point in reinforcing constitutional responsibility and the boundaries of gubernatorial authority. Through the invocation of Article 142, the court has specified that the governor's inaction, breaches of procedure, and persistent disregard for constitutional standards cannot remain unaddressed. The ruling highlights the governor's duty to act in accordance with the constitution and the wishes of the elected legislature; the court will hear the matter next on July 29. Empower Your Legal Practice with AI – Join Our Free Webinar!

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