What is a Presidential reference? | Explained

President Droupadi Murmu seeks Supreme Court opinion under Article 143, sparking debate on advisory jurisdiction and constitutional interpretation.

The story so far: President Droupadi Murmu, has made a reference to the Supreme Court, under Article 143 of the Constitution, on certain questions of law and has sought its opinion on those questions.

The advisory jurisdiction of the Supreme Court under Article 143 is a relic of the Government of India Act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion.

A similar provision is available in the Canadian constitution. This mechanism allows the Supreme Court of Canada to offer opinions on legal questions referred to it by the federal or provincial governments. The U.S. Supreme Court on the other hand has consistently declined to provide any advisory opinion to the executive as it would violate the strict separation of powers envisaged in its constitution.

As per Article 143, the President may refer any question of law or fact of public importance to the Supreme Court for its opinion. The President makes such a reference based on the advice of the Union council of ministers. Article 145 of the Constitution provides that any such reference shall be heard by a bench of minimum five judges.

The Supreme Court may provide its opinion after such hearing as it thinks fit. The opinion is legally not binding on the President, and does not hold a precedential value for the courts to follow in subsequent cases.

However, it carries a strong persuasive value and is usually followed by the executive and the courts.

There have been around fifteen references made since 1950 before the current reference. Some of the landmark opinions from such references is summarised here.