Centre challenges Supreme Court ruling, asserting that it is the President, not the judiciary, who decides when to seek the court’s opinion, rejecting deadlines for Governors and the President.
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NEW DELHI: The ongoing legal battle over the scope of the President’s powers under Article 143 of the Indian Constitution has triggered a crucial debate on the separation of powers between the executive, legislature, and judiciary. The Union Government has strongly objected to a recent Supreme Court judgment which suggested that the President should seek the apex court’s opinion whenever a bill reserved by a Governor appears to be patently unconstitutional.
Background of the Controversy
On April 8, 2025, a Supreme Court bench comprising Justices J.B. Pardiwala and R. Mahadevan observed that whenever a Governor reserves a bill for the President’s consideration on grounds of unconstitutionality, the President should prudently refer the matter to the Supreme Court under Article 143.
The bench reasoned that since questions of constitutionality are best determined by the apex court, the President should not rely solely on executive advice but seek judicial clarity.
However, the Union Government, through Solicitor General Tushar Mehta, has now challenged this interpretation, contending that it infringes upon the President’s unfettered discretion.
Centre’s Arguments Against the Judgment
Ahead of Tuesday’s hearing on the Presidential Reference before a five-judge bench led by CJI Gavai, the Centre said,
“Any constitutional proposition of law that there exists a constitutional expectation for the President to refer every reserved bill to the Supreme Court is contrary to the constitutional scheme”.
The Union Government has given a detailed rebuttal to the judgment, emphasizing three primary grounds:
Discretion Under Article 143:
Article 143 grants the President the discretionary power to refer questions of law or fact to the Supreme Court. The Centre stressed that the term “consult” only indicates the act of asking for advice, but does not mandate such consultation.
Thus, the judiciary cannot dictate how or when the President should exercise this power.
Constitutional Scheme under Articles 200 & 201:
Articles 200 and 201 deal with the Governor’s and President’s powers to assent or withhold assent to bills. These provisions do not mention any mandatory role of the Supreme Court.
The Centre argued that:
- The legislature debates the constitutionality of bills during their passage.
- The President or Governor applies their independent mind in granting or withholding assent.
- The judiciary reviews laws once they become legislation and are challenged in appropriate proceedings.
Thus, the Constitution envisages a distributed interpretative role, not judicial monopoly.
No Judicial Mandate Over Pending Bills:
The Centre asserted that courts cannot examine the contents of a bill before it becomes law. Judicial adjudication at the pre-legislative stage undermines the constitutional prerogatives of the executive and legislature.
Turning the President’s prerogative into a judicially mandated duty would effectively create a “continuing mandamus”, which is constitutionally impermissible.
The Centre further questioned the maintainability of the state government’s petition, arguing that:
- Article 32 is meant for citizens to protect their fundamental rights, not for state governments to challenge the Governor’s actions.
- Any dispute between the Centre and a State must be filed under Article 131 as an original suit before the Supreme Court.
- Therefore, a state cannot invoke Article 32 against its own Governor.
The Constitutional Question
This dispute raises a fundamental constitutional issue:
- Should the President’s discretion under Article 143 remain absolute, guided only by executive advice?
- Or should there exist a “constitutional expectation” that the President must seek the judiciary’s view on potentially unconstitutional bills?
The Union Government maintains that the Constitution does not allow the judiciary to intrude into this executive domain, while the Supreme Court’s earlier observations leaned towards greater judicial oversight as a safeguard against unconstitutional legislation.
CASE TITLE:
Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India
SPL.REF. No. 1/2025 XVII-A
Questions referred by the President under Article 143 of the Constitution:
Judgement | State of Tamil Nadu v Governor of Tamil Nadu:
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