Advisory jurisdiction

Also called: Article 143, Presidential reference · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

Advisory jurisdiction is the Supreme Court's power under Article 143 to give the President its legal opinion. The President may ask about any question of law or fact of public importance. The President may also ask about a dispute over a pre-Constitution treaty or agreement. The Court gives this opinion without deciding a case between two parties.

It lets the government get legal advice before it acts, so it can avoid lawsuits later. It is in the news because of the 16th Presidential Reference (2025) on Governors' assent to state Bills.

Explanation

How a reference works

• Who asks: only the President can make a reference. The President acts on the advice of the Union Council of Ministers (Article 74). So in practice, the Union government decides what to ask.
• No dispute, no parties: the Court does not decide a fight between two sides. It only answers the questions sent to it.
• Steps, in order: 1. A legal question or doubt comes up before the government. 2. The President frames one or more questions and refers them under Article 143(1) or 143(2). 3. A Constitution bench hears the reference. A Constitution bench is a bench of at least 5 judges (Article 145(3)). 4. Under Article 143(1), the Court decides whether to answer some questions, all of them, or none. 5. The Court sends its opinion to the President. 6. The government is free to follow the opinion or ignore it.

Two types of reference

Feature	Article 143(1)	Article 143(2)
What can be referred	Any question of law or fact of public importance	Disputes over pre-Constitution treaties, agreements and similar documents
Must the Court answer?	"May": the Court can decline	"Shall": the Court must give its opinion
Why it exists	General legal advice	The proviso to Article 131 keeps these disputes out of the Court's original jurisdiction, so they come here instead

• While the Constitution was being drafted, Article 143(2) was changed. Now the Court gives only an "opinion" on such disputes, not a binding decision [6].

Limits: what the Court and the government can refuse

• The Court can say no under Article 143(1):
• It may refuse if a question is political, hypothetical (about an imagined situation) or vague, or if it cannot be answered [4].

• It may answer some questions and refuse others [5].

• A reference is not an appeal:

• The government cannot use a reference as a hidden review or appeal against a case the Court has already decided [5].

• The opinion is not binding:

• The opinion does not bind the President or the government.

• The President also does not have to make a reference at all.

• NCERT's view:

• NCERT finds it odd that every side is free to say no. The President need not ask, the Court need not answer, and the government need not follow the advice.
• NCERT also points out its use: the government gets legal advice before it acts and can fix a law or step in time.
• NCERT example: a proposed law to give citizenship to residents of Pakistan-occupied areas is the kind of matter the President could refer.

In the Constitution and practice

Where it sits

• Article 143(1) and 143(2), in Part V, the chapter on the Union Judiciary.
• Roots: Section 213 of the Government of India Act, 1935. That section let the Governor-General ask the Federal Court for its opinion on important legal questions [6].
• Article 145(3): every Article 143 reference goes to a bench of at least 5 judges.

Key Presidential references

Year	Reference	What happened
1951	Delhi Laws Act	Parliament can hand some law-making to the executive (delegation). It cannot hand over its essential law-making functions
1958	Kerala Education Bill	The Court balanced minority institutions' rights (Article 30) with the Directive Principles
1960	Berubari Union	Giving Indian territory to another country needs a constitutional amendment under Article 368. A simple law under Article 3 is not enough. This led to the 9th Amendment (1960)
1965	Keshav Singh	Clash between a state legislature's privileges and the courts' powers
1978	Special Courts Bill	The Court checked whether a Bill was valid before it became law
1991	Cauvery Water Disputes Tribunal	Karnataka's ordinance overriding the tribunal's interim order was held invalid
1993	Ram Janmabhoomi	Returned unanswered in Ismail Faruqui (1994)
1998	Third Judges case	Collegium of the CJI plus the 4 senior-most judges for Supreme Court appointments
2002	Gujarat elections	Referred on 19 August 2002, about the Election Commission's orders on holding elections after the assembly was dissolved [4]
2012	Natural resources (after 2G)	Came after the 2G judgment cancelled 122 telecom licences. Asked whether the Court could interfere in policy choices on how to allocate resources [5]

• Other references listed by the government include the Sea Customs Act, 1878, the 1974 Presidential election and the Jammu & Kashmir Resettlement Bill [4].

The 16th Presidential Reference (2025): Governors' assent

• What led to it:
• In April 2025, in State of Tamil Nadu v. Governor of Tamil Nadu, a Supreme Court bench held that a Governor cannot withhold assent indefinitely (hold back approval of a Bill forever) [3].

• The bench used Article 142 to treat 10 pending Tamil Nadu Bills as having deemed assent, meaning they were treated as approved even though the Governor never signed them [3].

• The reference:

• In May 2025, the President sent 14 questions on Articles 200 and 201 under Article 143(1). This was the 16th Presidential Reference [3][6].

• Article 200 covers the Governor's assent to state Bills. Article 201 covers Bills the Governor keeps aside (reserves) for the President.

• The opinion: a five-judge bench gave it on 20 November 2025 (2025 INSC 1333) [2][3]. The Court said:

• Three options: under Article 200, the Governor may (i) give assent, (ii) reserve the Bill for the President, or (iii) withhold assent and send the Bill back with comments. Option (iii) is not available for Money Bills [3].
• No binding advice: for Article 200 functions, the Governor is not bound by the advice of the Council of Ministers. Courts cannot normally review these functions, because they are not justiciable [3].
• No timelines: the Constitution sets no time limit, so the Court should not create one [3].
• No deemed assent: the Constitution has no idea of "deemed assent". No other authority, including the Court, can take over the Governor's role [3].

• Narrow exception: if a Governor shows prolonged inaction, the Court can give limited directions telling the Governor to act. It still cannot say what the decision should be [3].

• Effect:

• The opinion went against the April 2025 approach of court-set timelines and deemed assent under Article 142.
• Formally, as an advisory opinion, it still binds no one.

Don't confuse with

• Original jurisdiction (Article 131): the Court decides disputes between the Union and states and gives a binding decision. Disputes over pre-Constitution treaties are kept out of Article 131 by its proviso. They can only come to the Court as advice under Article 143(2).
• Review petition (Article 137): a party asks the Court to look again at its own final judgment, within 30 days. A Presidential reference cannot be used as a hidden review or appeal [5].
• Complete justice power (Article 142): the Court passes binding orders, enforceable across India, in a case before it. An Article 143 opinion binds no one. The 2025 opinion said Article 142 cannot be used to give deemed assent in place of the Governor [3].
• Article 143(1) vs Article 143(2): under (1), the Court "may" answer and can decline. Under (2), on pre-Constitution treaty disputes, the Court "shall" answer. Neither opinion binds the President.

Prelims Hooks

• Origin: Article 143 comes from Section 213, Government of India Act, 1935, which covered the Federal Court [6].
• "May" vs "shall": Article 143(1) is a question of law or fact, and the Court may decline. Article 143(2) is a pre-Constitution treaty dispute, and the Court shall answer. Trap: neither opinion binds the President or the government.
• Bench: every Article 143 reference goes to at least 5 judges under Article 145(3).
• Ram Janmabhoomi reference (1993): returned unanswered in Ismail Faruqui (1994). This is the classic example of the Court declining.
• Berubari reference (1960): giving away territory needs an Article 368 amendment, not an Article 3 law. This led to the 9th Amendment, 1960.
• 16th Presidential Reference: made in May 2025, with 14 questions on Articles 200 and 201. The opinion came on 20 November 2025 from a 5-judge bench. It said no court-fixed timelines, no deemed assent, and only limited directions for prolonged inaction [2][3].

Mains Points

• A useful tool or a misused one?
• For: the government gets legal clarity before acting, as in Berubari (1960) and the Kerala Education Bill (1958).

• Against: references can be a way around an unwelcome judgment. The 2012 natural-resources reference and the 2025 Governors' reference both came soon after inconvenient rulings, yet a reference cannot work as an appeal [5].

• Weak design: nobody is bound.

• The President need not ask, the Court can decline, as with Ayodhya in 1994, and the government need not follow the opinion.
• The 2025 opinion shows the confusion this causes. It is formally non-binding, yet it went against a binding April 2025 judgment on deemed assent [3].

• Reform ideas: make opinions binding, or allow references only on questions the Court has not already decided.

• Federalism and Constitution-bench backlog.

• The 2025 reference shows advisory jurisdiction can shape Union–state relations, such as the power of Governors over Bills passed by state legislatures.
• Each reference needs five or more judges, which adds to the delay in deciding constitutional cases. Some suggest a permanent Constitution bench or a separate Constitutional Court.

Related concepts

• Constitution bench
• Review petition
• Curative petition
• Doctrine of precedent
• Complete justice power

Read more

• Supreme Court jurisdiction II: advisory opinions, review, curative petitions and complete justice