Article 143 and Judicial Precedent: Can the Supreme Court Reconsider Its Own Judgments?

Authored by Anshid C K, a 4th-year law student at the Faculty of Law, Jamia Millia Islamia, New Delhi

Supreme Court of India

Introduction

Article 143 of the Constitution of India empowers the President to refer to the Supreme Court (“The Court”) any question of law or fact that has arisen or is likely to arise, provided that the question must be of public importance and it is considered expedient to obtain the Supreme Court's opinion thereon. Upon such reference, the Court, after such a hearing as it thinks fit, may advise the President accordingly.

In the exercise of this constitutional prerogative, the President of India, Smt. Draupadi Murmu has recently invoked Article 143 and referred the fourteen questions for the Court’s consideration.

The recent reference has not been free from criticism, particularly from legal commentators aligned with the opposition. A central criticism advanced is that the questions referred by the President stand substantially answered by the Supreme Court in the State of Tamil Nadu vs the Governor of Tamil Nadu and Another (“the Judgement”). It is argued that the present reference amounts to an attempt to employ Article 143 as a surrogate for the review jurisdiction under Article 137.  Consequently, the only legitimate recourse available to the Union of India would have been to invoke review under 137, rather than to resort to 143.

This debate must also be understood in the constitutional context of Article 74, which mandates that the President shall act in accordance with the aid and advice of the Council of Ministers. Accordingly, the reference is, in effect, a decision of the executive.

Against this backdrop, the central inquiry of this article is whether, in the course of rendering an opinion under Article 143, the Supreme Court may, directly or indirectly, revisit or review its prior decisions. This inquiry is pursued through an examination of the Court’s own jurisprudence on the scope and limitations of its advisory jurisdiction.

Judicial Construction of Article 143 in Early References

The first advisory opinion rendered by the Supreme Court under Article 143(1) was in the Delhi Laws Act, 1912, In Re. Notably, in that instance, the Court refrained from entering into a discussion on the nature and scope of Article 143. The issue of scope and maintainability of reference was first substantively considered in the Kerala Education Bill, 1957, In Re.

 The maintainability of the reference in the Kerala Education Bill was challenged on two principal grounds. First, it was contended that the reference invited the Court to pronounce upon the validity of a statute which was yet to come into force. Consequently, the questions posed were said to be abstract, hypothetical, and divorced from any concrete factual setting. Secondly, the reference was incomplete, as it didn’t incorporate all questions of constitutional importance arising from the bill, thereby rendering the Court’s opinion partial and insufficient.

Rejecting these objections, the Supreme Court clarified the contours of Article 143. On the first objection, the Court emphasised that the referential power of the President under Article 143 is not confined to situations of concrete factual disputes. The expression “likely to arise” in the Article, the Court reasoned, explicitly permits the President to place before it questions of laws and facts that may arise in hypothetical or anticipatory contexts. On the Second objection, the Court observed that the prerogative of selecting questions of reference rests exclusively with the President. The Court cannot decline to render its opinion merely because other questions of constitutional significance, which could have been referred, were left out.    

Subsequently, in  Powers, Privileges and Immunities of State Legislatures, In re, the presidential reference arose in the backdrop of a confrontation between the legislative assembly of Uttar Pradesh and the Allahabad High Court. The maintainability of the reference was challenged on the ground that it did not raise any question concerning the legislative competence under Article 246.

The Supreme Court turned down the objection, holding that it was premised on a misconceived assumption that a presidential reference under Article 143 can be made only where the matter pertains to the powers and functions of the President. Clarifying the position, the Court ruled that the President is constitutionally empowered to refer any questions of law or fact, so long as it satisfy two conditions: (i) the questions must be of public importance, and (ii) it must be expedient to obtain the Court’s opinion thereon. The scope of Article 143 (1), therefore, is of wide amplitude and is not limited to matters implicating presidential powers.

In elucidating the discretionary character of this power, the Court drew a contrast between Article 143(1) and Article 143(2). Whereas Article 143(1) employs the expression “may”, indicating that the Supreme Court is not under an obligation to tender its opinion, it possesses discretion to decline if it considers the reference inappropriate and unnecessary. By contrast, Article 143(2) uses the word “shall”, which mandates the Court to render its opinion in cases falling under its ambit. Accordingly, while the President enjoys wide latitude under Article 143 (1) to refer any question of law or fact of public importance, the safeguard lies in the Court’s discretion to refuse to opine where the reference does not warrant adjudication.

Finally, in surveying prior references, the Court noted that they do not establish any settled pattern as to kinds of questions that may be referred, but instead confirm the breadth of the power conferred under Article 143.

Later, in the Presidential Poll, In Re, the question referred was whether the election to the office of the President must mandatorily be conducted before the expiry of the incumbent’s term, notwithstanding the dissolution of the legislative Assembly of Gujarat, and whether such an election would remain valid when a legislative assembly is dissolved.   

An objection was raised that the facts recited in the reference were inaccurate and that the manner in which the questions were framed was improper. The Supreme Court, however, rejected this contention. It held that the Court cannot travel beyond the recitals contained in the reference: it is bound to consider the questions as framed and the facts as presented, without embarking on an inquiry into their veracity. The Court further underscored that although Article 143(1) vests it with discretion, such discretion must be exercised sparingly, and refusal to render an opinion should occur only for cogent and compelling reasons.

The next reference under Article 143 came in the Special Courts Bill, 1978, In Re. The Bill sought to provide for the constitution of special courts to try the offences committed during the Emergency period. It empowered the Central Government to declare offences triable by these Courts if, in its satisfaction, such offences had prima facie been committed during the Emergency. An appeal from the decisions of the special courts was to lie directly to the Supreme Court. The President referred the bill to the Court to ascertain whether the bill suffered from any constitutional invalidity.

The reference was challenged on multiple grounds. It was argued, first, that the reference was speculative and hypothetical, since the bill had not even been introduced in the Lok Sabha, and could undergo significant changes during the legislative process. Second, it was contended that the reference was vague and omnibus, in that it neither specified the reasons for possible invalidity nor identified the provisions under challenge. Third, the critics argued that the reference was purely political in nature and raised no genuine constitutional questions, and the court’s opinion at this stage would amount to an encroachment on Parliamentary privileges. Finally, it was suggested that permitting such a reference would render Article 32 otiose, as questions of validity could always be referred under Article 143 instead of being raised through judicial review.

The Court, however, firmly rejected these objections. It held that under Article 143, it’s the president who determines both the questions to be referred and their public importance. Once such a reference is made, the Court is bound to provide its opinion if the matters fall within its jurisdiction. The Court clarified that its discretion to decline is not sourced in the phraseology of clauses (1) and (2) of Article 143, but arises only in exceptional cases where impediments prevent a meaningful opinion.

With respect to the objection of speculation, the Court held that the absence of formal introduction of the bill in Parliament or the possibility of amendments during the legislative process does not negate the legal existence of a bill in its “flesh and blood”. The President, therefore, was within his authority to seek advice on its validity. On the objection of vagueness, the Court observed that the President is ordinarily expected to indicate the grounds of possible invalidity and specify the provisions apprehended to be constitutional. In cases where the reference is overly general or uncertain, the Court may decline to respond. However, in this instance, sufficient particularity has been supplied during the proceedings through submission and hearings, enabling the Court to answer.

The argument that the reference was political and amounted to a breach of parliamentary privilege was categorically dismissed. The Court held that adjudication on the constitutional validity is entrusted exclusively to the judiciary, offering an opinion on a bill prior to its enactment does not in any way encroach upon the powers and privileges of Parliament, especially when no specific privilege was shown to have been violated. On the contention that enforcement of advisory jurisdiction would virtually abrogate Article 32, the Court held that enforcement of fundamental rights under Article 32 and examination of the constitutional validity of a proposed law are distinct processes, and hence no redundancy arises.

These early judgments delineating the scope of Article 143 reveal a consistent pattern: each affirmed the wide ambit of the President’s power to determine the nature of questions suitable for reference. Notably, none of these decisions declined to furnish an opinion on the ground of non-maintainability. Although the issue of judicial review was not squarely addressed, the jurisprudence thus far supports the inference that the power of reference under Article 143 is of broad amplitude. The observation in the Special Courts bill 1978, In Re, that the pendency of a bill before the legislature does not curtail the President’s authority to seek an advisory opinion further underscores that the mere involvement of another constitutional functionary does not restrict the power of Article 143.

Having examined these preliminary authorities, the discussion now turns to judgments that directly engage with the question of whether the Court, in exercising its advisory jurisdiction, may effectively revisit or review its prior decision.  

Article 143 and the Question of Revisiting Judicial Precedents

The first occasion on which the Supreme Court examined the ambit of Article 143 in relation to reviewability of its own decisions arose in the Cauvery Water Disputes Tribunal, In Re. The Cauvery Water Disputes Tribunal (“the Tribunal”) had been constituted under the Inter-State Water Disputes Act, 1956, to adjudicate the claims over the distribution of Cauvery River water among Tamil Nadu, Karnataka, Kerala and the Union Territory of Pondicherry. The tribunal, relying on the Supreme Court’s pronouncement that it possessed competence to grant interim relief, issued an interim order in favour of Tamil Nadu and Pondicherry.  Karnataka responded by promulgating the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (the Ordinance), later replaced by an Act, which effectively neutralised the Tribunal’s order. Against this backdrop, the President sought the Court’s opinion on the constitutional validity of the Ordinance and ancillary matters.

A key issue framed for consideration was whether a Water Disputes Tribunal constituted under the 1956 Act is empowered to grant any interim relief. The Court bifurcated this enquiry into two limbs (i) the competence to grant an interim when specifically referred by the Central government (ii) the competence to grant such relief absent any reference. Since the first limb had already been settled by the Court in earlier litigation, the Court held that the matter was no longer res integra and accordingly declined to provide an advisory opinion.

More significantly, the Court clarified that Article 143 cannot be invoked to convert the advisory jurisdiction into an appellate mechanism over its own pronouncements. Once an authoritative decision has been rendered on a point of law, the only permissible mode of reconsideration lies in the exercise of the Court’s review jurisdiction under Article 137 or, in rare cases, through the invocation of its inherent power to correct decisions rendered per incuriam. The Court emphasised that the advisory jurisdiction does not extend to enabling the President to seek a reappraisal of a judicial determination already conclusively pronounced.

Further, in M. Ismail Faruqui (Dr) v. Union of India, the Supreme Court examined the scope of its advisory jurisdiction while addressing the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993) (“the Act”). The Act, enacted in the immediate aftermath of the demolition of the Babari Masjid on 6 December 1992, sought to vest in the Central Government ownership of the site of the mosque and its adjoining areas. Alongside challenging the Act, the petitioners questioned the maintainability of a presidential reference under Article 143 (3). The specific question posed in the reference was whether a Hindu temple or any Hindu religious structure pre-existed the construction of the Ram Janma Bhumi-Babri Masjid on the disputed site. The query was closely tied to Section 4 (3) of the Act, which mandated abatement of all suits and proceedings concerning the vested land. The underlying proposal was that, once the Court’s opinion was rendered, it would facilitate a conclusive resolution of the Ayodhya dispute- thus employing the advisory jurisdiction as an alternative dispute resolution mechanism.

The reference was met with significant objections. It was contended that the query was couched in vague and indeterminate terms, failing to outline the precise course of action to be pursued by the Government upon receipt of the Court’s opinion. Moreover, it was argued that such an opinion, even if rendered, could not, by itself, ensure finality of the disputes, particularly in the light of pending claims of the Muslim community, including rights asserted on the basis of adverse possession. In effect, Section 4 (3), when read in conjunction with the reference, was alleged to deprive one community of its substantive legal remedies without a clear mechanism for redress.

The Court upheld these objections. It reasoned that the government had articulated no coherent plan for how the opinion would be operationalised to resolve the underlying dispute. Consequently, it held that the reference could not serve as an effective alternative for adjudicatory proceedings and declared Section 4 (3) invalid. At the same time, the judgment is significant in recognising the potential of Article 143 to be invoked in circumstances of public importance as a mechanism resembling alternative dispute resolution. Although rejected in this case for want of clarity and efficacy, the decision underscores the wide ambit of Article 143, while simultaneously cautioning against its use in a manner that circumvents or extinguishes substantive legal remedies.   

The Presidential reference in In Special Reference No. 1 of 2002 In re (Gujarat Assembly Election matter) was in the context of dissolution of the Gujarat legislative assembly on 19 July 2002, following the outbreak of communal riots in the state.  Article 174 of the Constitution mandates that no more than six months shall elapse between two sessions of a State Legislative Assembly. In the wake of demands from the concerned citizens and civil society organisations, the Election Commission visited the state and, by exercising its power under Article 324, determined that a free and fair election could not be conducted within due time. The Commission’s position effectively required Article 174 to yield to Article 324. Against this backdrop, the President sought the Court’s advisory opinion on whether the mandate under Article 174 was subject to the Election Commission’s decision under Article 324, and whether the failure to observe Article 174 could be remedied by invoking Article 356.

The maintainability of the reference was contested on several grounds. First, it was argued that authoritative decisions of the Supreme Court already existed on the scope of Article 324, and seeking advice in this context would amount to the Court exercising appellate jurisdiction over its own prior rulings. Second, it was contended that the question relating to the proclamation of President’s rule under Article 356 was abstract in nature and therefore beyond the permissible scope of Article 143. Third, it was argued that the reference rested on a flawed reading of the Article, which itself does not stipulate the conduct of the election within six months of the last sitting, and that, in substance, the reference amounted to an indirect challenge to the Election Commission’s order.

The Court addressed these objections by relying on its earlier rulings on Article 143. It held that the query relating to Article 356 could not be dismissed as abstract and devoid of a factual background, since the President is entitled under  Article 143 to seek the Court’s opinion on questions of law and facts that are likely to arise. On the contention that the reference was premised on the misunderstanding of Article 174 or was a veiled attack on the Election Commission’s order, the Court clarified that it was not its function to inquire into the bona fide of the reference or its factual substratum. So long as a reference raises a question of public importance unclouded by political overtone, the Court observed, it is incumbent upon it to render its opinion.

With respect to the objection that the matter was already settled by the binding precedents, the Court noted that while there were decisions clarifying the ambit of Articles 324 to 329, there was no authoritative pronouncement directly on the interplay between Articles 174 and 324. This observation indicates that, once a valid presidential reference is made, the Court should not ordinarily decline to render an opinion except for weighty compelling reasons. It also suggests that the Court’s advisory jurisdiction under Article 143 is not ousted merely by the existence of prior judicial pronouncements on related questions. The issue of whether and to what extent the Court may revisit and qualify its earlier decisions in such a context became the focal point of the subsequent reference.

In re Rural Resources Allocation: A Nuanced Turning Point

The reference in  Natural Resources Allocation, In Re arose against the backdrop of the Supreme Court’s decision in Centre for Public Interest Litigation v. Union of India (“2G Judgement”). In that case, the Court had set aside the allocation of 2G spectrum licenses granted on a “first-come, first-served” basis. Emphasising that natural resources are held in trust for the people, the Court held that their distribution must adhere to the constitutional principles of equality and fairness. The auction, concluded, was the most appropriate method for ensuring transparency and non-arbitrariness in such allocation.

In response, the President invoked Article 143 and sought the Court’s opinion on whether an auction was the only permissible means of alienating natural resources. The maintainability of this reference was strongly contested on the grounds that it constituted, in substance, a disguised attempt at reviewing the 2G Judgement.

At the threshold, the Court addressed preliminary objections. It reiterated that the scope of Article 143 is determined primarily by the contingencies prescribed therein, and it is for the President to be satisfied whether such contingencies have arisen. Unless confronted with compelling reasons such as incompetence, the Court shall not refuse to render its opinion. It further clarified that neither the text of Article 143 nor judicial precedents prescribes a rigid form or methodology for a valid reference. Thus, the absence of the word “doubt” in the presidential reference could not justify its rejection. Similarly, the Court dismissed the contention that the recitals in the Union of India’s withdrawn review petition overlapped with the terms of the reference. A review petition, the Court explained, concerns adjudication of a dispute inster se parties, whereas a presidential reference under Article 143 invokes the Court’s advisory jurisdiction, where the Court renders an opinion on the questions referred; the two stand on distinct constitutional footings.

The central objection, however, was that the reference sought to reopen the conclusion in the 2G judgement, thereby inviting the Court to sit in appeal over its earlier decision under the guise of advisory jurisdiction.  Heavy reliance was made on the decision in the Cauvery Water Disputes Tribunal, In Re, where the Court had refused to answer a reference that effectively required it to review an earlier adjudication. While affirming that principle, the Court in Natural Resources Allocation introduced a significant doctrinal nuance: The limitation in Cauvery, it reasoned, applies to the review of a “decision”- that is, the final adjudication of a lis between the parties. Such a decision, once rendered, may only be revisited through the constitutionally prescribed mechanism of review under Article 137. By contrast, a “view of law”- the ration decidendi or normative proposition underpinning a decision- is not similarly insulated. Although Article 141 renders such views binding across the judicial hierarchy, the Court clarified that it retains the inherent authority, even while acting in its advisory jurisdiction, to reconsider or overrule its earlier pronouncements on the questions of law so long as the adjudication inter se parties remain unaffected. This power, however, is tempered by a self-imposed rule of judicial discipline; the Court ordinarily respects precedent and undertakes departure only in exceptional circumstances. Thus, while the constitutional framework prescribes a strict limitation on revisiting decisions, the review of views of laws remains within the Court’s discretion, albeit guided by principles of restraint.

Conclusion

The observations in In Re Natural Resources Allocation marked a turning point in the jurisprudence of Article 143. By articulating the distinction between a “decision” and “view of law”, the Court clarified the constitutional limitations upon its advisory jurisdiction, while simultaneously affirming its inherent authority to revisit and refine earlier pronouncements on legal points. This formulation reaffirmed that the Court, in an advisory capacity, cannot open or unsettle binding adjudication inter se parties. At the same time, the judgment revealed the inherent complexities of such a distinction: the potential overlap between “decision” and “view of law” may generate interpretative uncertainty, particularly where the ration decidendi is deeply enmeshed with the operative relief. What if the “decision” and “view of law” are intrinsically connected, or to what degree may the Court interfere with its decision between the parties to modify an egregious precedent?