Today, On 19th August, The Supreme Court, during the Presidential Reference hearing, clarified that a reference bench has the power to express its opinion on a judgment, but it does not have the authority to overrule an earlier judgment.
New Delhi: The Supreme Court of Indiaheard on a Presidential Reference regarding the question of deemed assent of bills.
A five-judge Constitution Bench led by Chief Justice B.R. Gavai is looking into the matter.
President Droupadi Murmu raised doubts about the earlier Supreme Court direction which said that there would be a deemed consent if the President or the Governor failed to act within the timeline fixed by the court for granting assent to bills.
The reference stated that “the concept of a deemed assent of the President and the Governor is alien to the constitutional scheme and fundamentally circumscribes the power of the President and the Governor.”
The Supreme Court of India is hearing a Presidential Reference on the question of deemed assent of bills, where a five-judge Constitution Bench led by Chief Justice B.R. Gavai is examining the issue of maintainability.
Attorney General R. Venkataramani, who was issued notice, sought the court’s permission to present some preliminary pointers.
However, Chief Justice B.R. Gavai made it clear at the very beginning,
“First we have to hear objections to the maintainability.”
Senior Advocate P. Wilson, appearing for the State of Tamil Nadu, strongly argued that the state must be heard on the issue of maintainability.
Senior Advocate K.K. Venugopal submitted that this issue has already been dealt with in several judgments. He referred to Article 200 of the Constitution and pointed out that in cases related to Punjab as well as Tamil Nadu, the Supreme Court had already interpreted the phrase “as soon as possible,” and in the Tamil Nadu matter, the court had even fixed a timeline.
When the Bench asked about the applicability of Article 145(3), Chief Justice B.R. Gavai asked,
“What about article 145(3). Are the judgments on which you are relying by five judges?”
Venugopal admitted that the judgments were delivered by smaller benches two judges in Telangana and Tamil Nadu cases and three judges in the Punjab case. He added that there was some dispute regarding Article 145(3), since the court continues to decide many constitutional issues even with smaller benches.
CJI Gavai then questioned him,
“When Hon’ble President is herself seeking reference, then what is the problem … Are you really serious about contesting this? Then tell me how to overcome 145(3).”
Solicitor General Tushar Mehta intervened and said that the earlier judgment had already considered the point of reference.
In response, CJI remarked,
“So you are saying five judges bound by two judges..”
To this, Venugopal replied that unless the court overruled the earlier decision, it would remain binding.
CJI then responded,
“We have understood.”
Venugopal further argued that this reference fell outside the scope of Article 143 because eleven issues had already been conclusively decided. He said that instead of making a reference, the government should have filed a review.
According to him, the President is bound by the aid and advice of the Council of Ministers and must act in accordance with it. Therefore, the Presidential Reference made by the Government of India bypassed the review process and had the effect of overturning a judgment of the Supreme Court, which under Article 141 is binding.
Senior Advocate Abhishek Manu Singhvi also opposed the maintainability. He said that there can be no intra-court appeal, either directly or indirectly, and no review petition was filed. He argued that Article 143 cannot be used as a substitute for a curative petition, as recognized in the Rupa Hurra case.
He stressed that every issue, except for issues 11, 12, and 14, had already been covered by earlier judgments. Even these three did not survive independently, since issue 11 was not standalone and issues 12 and 14 were only peripheral.
Singhvi explained that if a bench refers a matter under Article 145(3), it is permissible. However, if a bench does not do so, then in a later and unrelated case, the court cannot reopen the lis. Doing otherwise would go against the settled law of the court. He warned that this reference was in reality an indirect appeal, saying that the court was being asked to alter the contents of a judgment between two parties, which would amount to subverting institutional integrity.
Justice Surya Kant then asked,
“But where is the question of setting it aside..”
CJI Gavai also observed,
“If this is accepted, then no judgment of this court can be touched.”
Singhvi urged the court to consider the institutional consequences of allowing such intra-court appeals. Justice Vikram Nath also remarked that Singhvi was assuming the two-judge bench decision would be set aside without basis.
CJI further clarified,
“We are not deciding the appeal against Tamil Nadu decision..we are on the reference.”
Singhvi referred to the 2G spectrum case, where the bench had considered issues not decided earlier. At this point, Senior Advocate Kapil Sibal also intervened and explained,
“The principle of law decided in 2G was that natural resources must be auctioned. There were mines and minerals, etc The question was whether all natural resources should be auctioned.”
Attorney General Venkataramani reminded the court that Article 145 was specifically referred to in the Tamil Nadu judgment. He added that there was no absolute bar against the court under Article 143. He said the real question was what the court should do in such a case, and in matters of great public importance, the court could depart from its usual practice.
He stressed that,
“There is no inbuilt bar under Article 143.”
During the Supreme Court hearing on the Presidential Reference concerning deemed assent, Attorney General R. Venkataramani argued that even if an area of law was already covered by earlier judgments, the President could still seek a reference when there were multiple rulings given by benches of different strength, such as two-judge or three-judge benches.
In such cases, he said, the Supreme Court had the power to clarify and answer the constitutional questions.
Solicitor General Tushar Mehta described the matter as a unique constitutional issue. He explained that the President was only seeking guidance on what should be done when a constitutional difficulty arises, especially regarding the role of the President or the Governor. He pointed out that although the Supreme Court does not usually revisit decided cases, in the 2G case the court had held that it was permissible in exceptional circumstances.
He further submitted that the court could declare that the Tamil Nadu judgment was not the correct law, and that doing so would not amount to exercising appellate power but would instead be an exercise of the court’s inherent jurisdiction.
The Solicitor General emphasised that the present controversy had created a real constitutional functional problem. He questioned whether constitutional authorities like the President or the Governor were bound by a three-month deadline or by the directions issued under Article 200.
He raised the concern that if clarity was not given, then all states would be forced to approach the Supreme Court individually. He said the issue was not an ordinary lis between two parties but involved constitutional functionaries, and therefore the government intended to argue the matter on merits.
At this stage, Justice Surya Kant underlined,
“We are exercising advisory jurisdiction and not appellate jurisdiction. For overruling, etc, you may have to move the review.”
Responding to this, the Solicitor General relied on past precedents. He pointed out that in both the 2G case and the Kerala case, the Supreme Court had held that while answering a Presidential Reference, the court could even go to the extent of overruling an earlier judgment.
During the hearing on the Presidential Reference, arguments were presented by senior advocates on whether earlier judgments restrict the present proceedings. They discussed the scope of the 2G judgment, the binding nature of Article 141, and the approach taken in the Tamil Nadu judgment regarding the President’s power to seek the Supreme Court’s opinion on doubts about a bill.
The matter focused on whether the court should only address maintainability or also provide clarity on the constitutional questions raised.
President Droupadi Murmu On 13 May 2025, invoked the Supreme Court’s advisory jurisdiction under Article 143 of the Indian Constitution. This article empowers the President of India to seek the Supreme Court’s opinion on matters of public importance involving legal or factual questions.
The reference includes 14 questions concerning the constitutional powers of the Governor and the President under Articles 200 and 201, particularly in relation to granting or withholding assent to state legislation. This significant constitutional development comes after the Supreme Court’s landmark ruling in State of Tamil Nadu v. Governor of Tamil Nadu (2025).
Background
The Presidential Reference followed the April 8 Supreme Court ruling which held that Governors cannot indefinitely sit on Bills passed by State legislatures. Though Article 200 does not mention a deadline, the Court said Governors must act within a reasonable time and cannot stall the democratic process.
The Court also held that under Article 201, the President must decide on Bills within three months. If delayed, reasons must be recorded and conveyed to the concerned State.
The exact words of the April 8 judgment were:
“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.”
President Murmu later sent 14 questions to the Court, asking whether the judiciary could impose such deadlines and whether the concept of “deemed assent” was constitutionally valid.
While the Centre backs the Reference, arguing that Governors’ powers cannot be curtailed by judicial timelines, both Kerala and Tamil Nadu have asked the Court to dismiss it as not maintainable.
Case Title: Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India | SPL. REF. No. 1/2025 XVII-A
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