Yesterday, a Constitution Bench of the Supreme Court rendered its advisory opinion on a Presidential Reference concerning the scope of the Governor’s powers when a bill passed by a State legislature is presented for assent.

The Reference was triggered in the aftermath of State of Tamil Nadu v. Governor of Tamil Nadu, where a two-judge bench, confronted with extraordinary delays in granting assent, had introduced fixed timelines for gubernatorial action and the doctrine of “deemed assent” in cases of prolonged inaction.

In its opinion, the Constitution Bench led by Chief Justice of India BR Gavai has now held that both directions - prescribed timelines and deemed assent - are constitutionally impermissible and amount to a judicial rewriting of Articles 200 and 201. While the ruling will undoubtedly spark renewed discussion on federalism, the Governor’s role and the limits of judicial intervention, two more fundamental concerns demand attention: whether the Court ought to have entertained the Reference at all; and whether an advisory opinion under Article 143 can be used to unsettle a binding precedent delivered only months earlier.

Article 143(1) authorises the President to refer to the Supreme Court any question of law or fact that has “arisen, or is likely to arise,” and which is of such a nature and of such importance that it is “expedient to obtain the opinion of the Supreme Court.” The provision then states that the Court may, after such hearing as it thinks fit, “report to the President its opinion thereon.” The choice of may is deliberate: the Constitution contemplates that the Court retains discretion; it is not bound to answer every reference placed before it.

Presidential references have been made fifteen times in the past and in most cases, they raised unresolved constitutional dilemmas. However, the present reference is different. It did not arise against a backdrop of legal uncertainty. Instead, the issues referred had already been adjudicated only months earlier in the Tamil Nadu judgment, which addressed the Governor’s options under Article 200, the impermissibility of indefinite delay, the scope for judicially prescribing timelines and the consequences of inaction. Whatever one’s views on the correctness of that decision, it constituted “law declared” under Article 141.

The Constitution Bench justifies entertaining the reference on two grounds: first, that the conclusions in the Tamil Nadu judgment were at variance with earlier decisions; and second, by pointing to earlier instances where a Presidential Reference led to a reconsideration of prior decisions -such as In re: Special Courts Bill, 1978 or In re: Appointment and Transfer of Judges (1998).

Let me take the latter argument first. The said opinions mentioned by the Court were not rendered in such close temporal proximity to the judgments they examined. In each of those cases, the Court revisited established precedent after the passage of time and in the context of broader constitutional dilemmas. Some may argue that even in In Re: Appointment and Transfer of Judges (the Third Judges Case), the Presidential Reference was made only five years after the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India. However, that comparison is inexact. In the Third Judges Case, the Attorney General expressly clarified that the Union was not seeking a review or reconsideration of the earlier judgments, which would continue to be binding. The reference was, therefore, not an attempt to unsettle a fresh precedent but to seek clarification on certain aspects without disturbing the law already declared.

Here, by contrast, the reference follows Tamil Nadu almost immediately, and its effect is to re-open and ultimately overturn conclusions reached only months earlier. That immediacy suggests not the gradual development of constitutional uncertainty, but the revisiting of a fresh precedent - something the Court ordinarily does through a review or by constituting a larger Bench.

If doctrinal inconsistency - that is, the Tamil Nadu judgment not adhering to earlier precedent - was the Court’s concern, the Constitution and judicial practice provide a clear mechanism for addressing it: constitute a larger Bench or consider a review petition. This was the approach in Sabarimala, where, after the five-judge bench decision permitting entry to women into the temple, multiple review petitions were filed and the matter was ultimately referred to a larger Bench to ensure congruence with precedent. The judicial process was allowed to operate within its established framework.

In the present case, however, the Court adopts a different route. It maintains that it is not sitting in appeal over the Tamil Nadu judgment but merely clarifying larger constitutional principles. Yet, this characterisation sits uneasily with the outcome. The central conclusions of the Tamil Nadu verdict - on timelines and deemed assent - now stand overruled. The distinction between “clarification” and “overruling” becomes one of description rather than substance.

A further difficulty arises from the Court’s introduction of what it calls a “functional reference.” The Bench notes that earlier Presidential References did not concern “constitutional mechanics” - the day-to-day functioning of the Governor, President and State Legislature in the passage of Bills - and that this reference is therefore “fundamentally of a different nature.” But this is a wholly new category, untethered to the text of Article 143, and its contours remain unclear.

As formulated, the category is both broad and elastic. Many constitutional controversies - including those involving the appointment of judges, the functioning of legislatures or the exercise of executive discretion - possibly relate to the “day-to-day functioning” of constitutional actors. If that alone is sufficient to characterise a matter as a “functional reference,” then there is little to prevent future governments from invoking Article 143 whenever politically sensitive questions arise. The Court does not adequately explain what distinguishes a functional reference from an ordinary one.

This raises a deeper structural concern. If Article 143 can be used to reopen a freshly decided judgment without recourse to the safeguards of review (which has a higher threshold) or a larger bench, the boundary between advisory and adjudicatory functions becomes increasingly porous. It is for this reason that, in my view, the maintainability of the reference required closer scrutiny than it ultimately received.

This leads to a second and equally important difficulty with resorting to Article 143: it is not clear whether an advisory opinion constitutes binding precedent law at all. Article 143 speaks only of the Court reporting its “opinion,” unlike other jurisdictions where the Constitution uses the term “judgment.” This distinction is visible elsewhere in the text: Article 145(3), for instance, separately refers to “judgments” and to “reports and opinions under Article 143,” indicating that the Constitution itself treats the two as distinct.

The Supreme Court has, on earlier occasions, acknowledged this ambiguity. In re: Special Courts Bill, 1978, the Court noted that whether an opinion delivered under Article 143 amounts to “law declared” under Article 141 is a question that may require fuller consideration in the future. That inquiry has never taken place conclusively. Instead, different benches have approached the issue differently and in practice, advisory opinions have often been treated as binding or at least binding-in-effect.

The present judgment relies heavily on selective excerpts from Justice YV Chandrachud’s opinion in Special Courts Bill to suggest that all courts “ought to be bound” by an advisory opinion. The judgment reads:

"We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and  to overrule, if necessary, the view earlier taken by it, insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution.”

However, the present judgment omits the remainder of Justice Chandrachud’s reasoning, which complicates - and in some respects contradicts - the conclusion drawn from the excerpt. The complete passage shows that Justice Chandrachud recognised competing views, noted divergent High Court authorities and explicitly left the binding-force question open:

“The question may have to be considered more fully on future occasion, but we do hope that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain...We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to over-rule, if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this court even in the exercise of its advisory jurisdiction under art. 143(1) of the Constitution.

We would also like, to draw attention to the observations made by Ray, CJ., in St. Xaviers College (supra) that even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight…It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all…While saying this, we are not unmindful of the view expressed by an eminent writer that although the advisory opinion given by the Supreme Court has high persuasive authority, it is not law declared by it within the meaning of Article 141.”

The last few lines clarify that even the Bench in Special Courts Bill did not finally resolve the issue. The opinion acknowledges the lack of clarity in the doctrine and cites Seervai’s position that advisory opinions are not law declared under Article 141.

Against this backdrop, there is a conceptual difficulty in using Article 143 to unsettle a judgment delivered only months earlier under Article 141, while leaving unresolved whether the new opinion itself binds future benches. This is precisely why the ordinary appellate mechanisms - review or reference to a larger bench - exist. They allow the Court to correct or clarify the law through established judicial channels that unambiguously produce binding precedent.

At the same time, it must be acknowledged that advisory opinions have, in practice, influenced the law as though they were binding. In the Bearer Bonds case, Justice PN Bhagwati expressly relied on propositions set out in the Special Courts Bill reference, describing them as the “latest and most complete exposition of the propositions relating to the applicability of Article 14”. Similarly, the Third Judges Case - itself an advisory opinion - increased the size of the Collegium from the Chief Justice and two judges to the Chief Justice and four judges and has been followed consistently for over two decades.

These examples illustrate that regardless of doctrinal uncertainty, advisory opinions under Article 143 often function as binding precedent. Yet, it is precisely this functional effect that heightens the concern in the present context. By using Article 143 to effectively overrule the Tamil Nadu judgment, the Court effectively unsettles a fresh binding judgment while simultaneously declining to clarify whether its own advisory opinion will bind future benches. The result is a jurisprudential ambiguity that the Court could - and perhaps should - have confronted directly.

The judgment treats its conclusions as authoritative enough to unsettle a recent precedent but stops short of articulating the legal status of its own opinion. The result is a curious paradox: an exercise meant to provide clarity has, on an essential point, introduced further ambiguity.

Equally striking is what the Court chose not to engage with. The President’s reference had raised important questions of constitutional practice — including the scope of the Court’s powers under Article 142 and the composition of benches deciding substantial constitutional questions. These are areas where the law remains unclear and where guidance from a Constitution Bench would have been valuable. Yet, the judgment declines to address them, leaving unresolved issues that have generated longstanding debate within the legal community and have often been invoked to criticise the judiciary for violating the separation of powers.

Notably, the Court also concludes that these matters do not fall within the newly articulated category of a “functional reference” under Article 143 - a conclusion that effectively insulates such questions from being examined through the very mechanism invoked in this case.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.