Presidential Reference and the politics over federalism

The Court can help define Union-state equations in clearer terms, reaffirm tenets in separation of powers.

The interplay between the legislature, executive and judiciary is complex. Delineating the dynamics behind this complexity is essential to understand the institutional interaction in a functional democracy. The relationship between the two variables in a structure-function framework is vital to explain the processes underlying this tussle between the two organs of the state. Understanding the dialectical interaction between the different organs of the government is critical for the healthy functioning of a democracy.

On May 13, the President of India Droupadi Murmu posed 14 questions to the Supreme Court under Article 143(1) of the Constitution. The central questions pertain to Articles 200 and 201 along with Articles 131, 142, 143, and 145(3). The President’s questionnaire was somewhat expected, following the Court’s verdict in the case of The State of Tamil Nadu vs The Governor of Tamil Nadu & Anr (2025) delivered on April 8. The judgement has drawn mixed responses among legal experts, constitutional authorities, and citizens. Broadly, arguments around four themes have come up – judicial overreach in terms of setting timelines for the Governor and the President, the scope of judicial review considering that the Court is the final adjudicator of constitutional and legal provisions, federalism through the strengthening of Union-state relations, and the separation of powers.

Outside of these four important areas, there are political objectives with implications on governance. The Presidential Reference has drawn an immediate response from Tamil Nadu Chief Minister M K Stalin. In a letter addressed to the non-BJP CMs of eight states, he called for unity in opposing the Reference on its political nature and taking it on legally to protect and preserve the states’ rights. Highlighting the Court’s verdict, the letter says, “This historic judgement obtained by my Government is not only for
my State but for all States since it upholds the federal structure and distribution of powers between the States and the Union”.

Under Article 143(1), the Constitution of India empowers the President to seek advice on any issues of legal and constitutional importance. The key question is – why was the same not exercised when the Governor of Tamil Nadu reserved the bills for Presidential Reference in 2023 and 2024? The current questionnaire revives an important discussion but its timing points to political designs. This strikes as a strategic move by the government ahead of a review petition seeking to settle uncomfortable portions in the Court’s verdict, especially around setting the timeline for the Governor and the President in giving the assent to bills passed by state legislatures.

In a democracy, the tussle between the judiciary and the executive is inevitable and has significant ramifications on the governance outcome. The current discourse on the question of the supremacy of one organ of the state over the others is deeply problematic. About sovereignty, the Constitution is clear that “We the People of India” are the ultimate sovereign authority, not the organs of the State. Friction between these organs for the sake of exercising power is unhealthy for a democracy. All the organs of the State have to work in cooperation to provide citizen-centric governance.

Towards larger reform

In the instant case, the union Government, after receiving the response (provided the Court accepts the maintainability of the Presidential Reference), shall initiate a legal dialogue
to formulate a suitable mechanism
and rationale in the appointment of governors. The politics surrounding the appointment of governors is the central issue that needs immediate attention. The selective attack on the judiciary and its functioning only deepens the power struggle between the executive and the judiciary which is detrimental to democratic ethos. The larger goal must be to strengthen democratic structures to improve governance outcomes.

The Constitution of India, unlike in the US, has a flexible approach to the separation of powers among and between the different organs of the State. In Asif Hameed & Ors vs State of Jammu and Kashmir & Ors, the Supreme Court observed that “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State... No organ can usurp the functions assigned to another... The functioning of democracy depends upon the strength and independence of each of its organs...” The question of parliamentary sovereignty or legislative supremacy is a recent addition to the discourse notwithstanding the well-settled democratic principle and practice of independence of the judiciary.

A critical analysis of the Presidential Reference made under Article 143(1) provides both an opportunity and challenge to the Supreme Court to settle some of the crucial constitutional issues. Among them are the discretionary powers of the Governor and the President, the relevance of veto power, and the need for reforming the Governor’s office to make it more suitable to the contemporary changes in democracy. It needs to be seen whether or not the Court decides to respond to the Presidential questionnaire, as it is optional. However, this is a crucial juncture in the history of Constitutional Law as it sets out to advance its opinion on some of the critical issues of parliamentary democracy and democratic governance.

(The author is an independent researcher and writes on governance issues)