Bolt the back door of Executive overreach

The President can ask the Supreme Court its opinion on a question of law, but this power is not a mechanism for allaying executive displeasure. It is not a roundabout redress route for a government dissatisfied with a judicial verdict. And Article 143 is not a back door to relitigate what the front door of Article 137 bars.

That is the core of the message states like Tamil Nadu, Kerala, Punjab and Jharkhand have sent to the Supreme Court. In one voice, they have asked the Court to decline the ‘Presidential Reference’ that seeks to ‘clarify’ the Governor’s powers on state bills. Not because it is unimportant, but because it is constitutionally impermissible. This Reference is not a question — it is a complaint. And the Court must refuse to be turned into a forum for constitutional do-overs.

The Reference poses 14 questions about the powers of Governors and the President in granting or withholding assent to bills. On the surface, it looks like a genuine legal query. But a closer look reveals that these questions are practically identical to the arguments already raised — and rejected — in the State of Tamil Nadu vs Governor of Tamil Nadu judgement delivered in November 2023.

That verdict was unambiguous. It held that Governors must act within a constitutionally reasonable time interval. It rejected the idea of indefinite inaction. It reaffirmed that gubernatorial discretion is not a license to stall elected legislatures.

Now, with the dust barely settled, the same issues have returned not through a review petition under Article 137, which has strict limits, but through a Presidential Reference under Article 143, which has none. This is not a clarification, though — it is relitigation masquerading as doubt.

Why Art. 143 cannot be a bypass

While Article 143 allows the President to refer legal questions of public importance to the Supreme Court, the Court is not obliged to answer every Reference. In Cauvery (1998), the Court clearly ruled that Article 143 cannot be used to appeal or reopen its own judgements. To allow that would be a ‘serious inroad into the independence of the judiciary’.

This Reference, like in Cauvery, does not point to a constitutional grey zone. It simply recasts a settled issue as an unsettled one. That is not a permissible use of Article 143 — it is misuse.

If the government truly believed there was an error in the Tamil Nadu judgement, it should have filed a review petition. That process is governed by strict timelines and requires the error to be apparent on the face of the record. Article 143 has no such checks. To conflate the two is to upend the Constitution’s architecture of remedies.

The federal stakes

Beyond procedure, there is principle. Several state submissions warn that accepting this Reference would tilt the constitutional balance in favour of the Centre. If the Union can overturn a judgement protecting the states’ legislative powers by simply calling it a ‘clarification’, then federalism becomes a matter of executive convenience. The judgement in the Tamil Nadu case was not just about one state. It was about every legislature in this country whose bills are being stalled, indefinitely, by unelected Governors. If Article 143 becomes a tool to sidestep adverse verdicts, we are on a slippery slope to centralisation by stealth.

Finality is not optional

‘Judicial finality’ is not a luxury — it is a settled principle of jurisprudence and a necessity. It is what separates law from power. As a state noted in its submission, ‘uncertainty in the fountain source percolates through the entire system’. If the Court entertains this Reference, it sends a message: that no verdict is ever final if the government dislikes it enough.

The concern here is not hypothetical. Another state in its written arguments, posed a chilling possibility: what if tomorrow, the Union government files a Reference on Kesavananda Bharati, Minerva Mills, or I.R. Coelho — all under the guise of clarification? The Constitution would become a never-ending consultation process, subject to the whims of the executive.

A political question, not a legal one

There’s also the inescapable political context. Governors in Opposition-ruled states have repeatedly stalled legislation, using silence and delay as tools of obstruction. The Tamil Nadu verdict cut through that. It reasserted the rule of law. The Reference now appears to be a political response in constitutional clothing.

In such cases, the Court must be guided by its own restraint. It has previously refused to answer References that were deeply entangled in political disputes as in the Ayodhya demolition reference of 1993. This one deserves the same treatment.

The Court is not bound to entertain this Reference. In fact, it has a constitutional obligation to refuse it — if doing so protects the integrity of its own decisions and upholds the federal compact.

In returning the Reference, the Court could potentially say: ‘Having already interpreted Articles 200 and 201 in State of Tamil Nadu vs Governor of Tamil Nadu, this Court finds no constitutional doubt or legal purpose that would justify an advisory opinion under Article 143. The Reference is accordingly returned unanswered, with liberty to the Union to avail of the review jurisdiction under Article 137, if available.’ That is the line the Court should hold. With clarity, dignity and fidelity to the Constitution.

This case is bigger than the fate of one verdict. It is about who has the last word in our constitutional democracy. The states have spoken — not for themselves alone but for the idea of representative government.

If the Supreme Court allows this Reference to proceed, it risks turning itself into an appeals court against its own authority. That would be a disservice not just to the judgement in question but to the very structure of the Constitution.

Bolt the back door; guard the front. And let the Tamil Nadu judgement stand — not diluted or dodged, but as a declaration of what the Constitution demands: government by laws, not by men.

Views are personal

Sanjay Hegde is a senior advocate in the Supreme Court of India. More of his writing can be read here