Article 143: Tightrope walk for the Supreme Court

OUR Constitution means different things to different people. For the political class, it can be a tool to navigate adverse judgments. For the judiciary, it is the lodestar. Article 143, which allows the President to seek the Supreme Court’s opinion on legal questions, has been invoked to refer 14 questions about the powers of governors and the President in dealing with Bills.

This would not have been controversial, but for the fact that these questions appear to re-examine settled ground in the Supreme Court’s judgment in the Tamil Nadu (TN) Governor’s case. This raises a critical question: Is this presidential reference a legitimate constitutional act or a backdoor review bid?

In the TN case, the SC clarified that governors must act on the aid and advice of the Council of Ministers and cannot indefinitely delay action on Bills. It also laid down that constitutional authorities, including the President, cannot function without accountability or within limitless timelines.

Dissatisfied with this outcome, the Union Government has now supported a presidential reference posing questions nearly identical to those already answered. This has created the perception that the executive is seeking to reopen a settled verdict without going through the formal review process.

Article 143 allows the President to seek the SC’s advisory opinion on legal or factual matters of public importance. However, the court is not bound to answer such references. It has the discretion to decline, as seen in Special Reference No. 1 of 1964 and the Ayodhya dispute in (Special Reference No. 1 of 1993).

In the Cauvery water disputes case (Special Reference No. 1 of 1998), the apex court stated that Article 143 cannot be used to appeal a judgment or seek a second opinion on a matter the court has already ruled on. The court emphasised: “Under the Constitution, such appellate jurisdiction does not vest in this court; nor can it be vested in it by the President under Article 143. To accept Shri Nariman’s contention would mean that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of this court over its own decision between the same parties and the executive has a power to ask this court to revise its decision. If such power is read in Article 143, it would be a serious inroad into the independence of judiciary.” (Fali Nariman was the counsel for Karnataka in the Cauvery case).

Thus, if the court has already pronounced an authoritative view, no “doubt” exists warranting presidential advice. The court cannot be turned into an appellate forum against itself.

The 14 questions posed by the President echo many already settled in the TN judgment. These include whether a Governor can return a Bill multiple times, or whether the President is bound by a timeline for assent. These were not left ambiguous — they were decided with clarity.

This suggests that the reference is not truly seeking clarification, but rather reconsideration. And if so, it is not just a legal issue — it strikes at the foundation of judicial finality.

The 2G spectrum reference in 2012 is a notable exception where the SC used Article 143 to clarify aspects of an earlier judgment. After the court cancelled 122 telecom licences, the government sought guidance on whether an auction was the only permissible method for allocating natural resources.

The court clarified that while auctions were a fair method, they weren’t the only constitutional way. Importantly, the clarification did not disturb the core decision.

The SC said: “We are, therefore, of the view that as long as the decision with respect to the allocation of spectrum licences is untouched, this court is within its jurisdiction to evaluate and clarify the ratio of the judgment in the 2G case.”

This distinction is vital. In the 2G matter, the government wasn’t asking the court to reverse its ruling — just to guide future policy.

In contrast, the latest reference goes to the core of the TN case judgment. It does not ask for interpretation of consequences or guidance for future cases. Instead, it revisits the very questions the court already answered.

To allow this would mean that the executive can bypass Article 137 (which governs review) and re-litigate cases via Article 143. That is both constitutionally impermissible and institutionally dangerous.

Is the court bound to respond? No. In the Special Courts Bill case, the court observed that it could decline to answer a reference and must give reasons for doing so.

In the 2G case, the court listed several grounds for declining a reference: (i) If the questions are already settled; (ii) If they are political; (iii) If they do not serve a constitutional purpose; (iv) If they do not involve issues of legal significance.

The TN judgment clearly falls in the category of a settled constitutional question. Reopening it risks reducing the finality of judicial decisions to a matter of executive preference.

The political backdrop cannot be ignored. Governors in several Opposition-ruled states have used dilly-dallying tactics to stall legislation. The TN judgment curtailed this practice. It is hard not to view the reference as a response to that curtailment.

This is more than a constitutional query — it is a political pushback. If the SC entertains this reference, it risks being seen as yielding to political pressure, especially when the constitutional path of review is always available.

The court has a difficult task. It must balance respect for the President’s office with its duty to protect the integrity of its decisions.

If the reference is indeed an attempt to re-argue the TN case, the court should decline to answer it. It should clearly state that Article 143 cannot be used to circumvent the finality of judicial verdicts. If, however, there are aspects of the ruling that need clarification for future governance, the court may choose to answer — but only narrowly. It must ensure that it does not dilute the authority of its earlier decision.

Article 143 was meant as a tool for legal clarity, not a political escape route. The SC ruling in the TN Governor’s case was clear, binding and grounded in constitutional principles.

If the executive disagrees, the Constitution provides a remedy: a review petition. What it does not permit is a second bite at the cherry, disguised as a presidential reference.

This reference, if entertained without scrutiny, risks undermining the court’s authority and encouraging a dangerous trend. The judiciary must not let itself be used as a forum for constitutional do-overs.

In the final analysis, the court must act not only as the interpreter of the Constitution, but also as its guardian. Declining to answer may be the clearest way to protect both.

Sanjay Hegde is a senior advocate in the Supreme Court.