A five-judge Constitution bench of the Supreme Court, headed by Chief Justice of India (CJI) Bhushan R Gavai, is set to take up the presidential reference on July 22 to examine the legality of prescribing timelines for governors and the president to act on state bills.
The eagerly awaited hearing will be conducted by a bench comprising the three most senior judges of the court — CJI Gavai, Justice Surya Kant, and Justice Vikram Nath, along with Justices PS Narasimha and Atul S Chandurkar. Notably, the bench includes four current or future Chief Justices of India, with Justice Surya Kant set to take over in November 2025, followed by Justices Vikram Nath in February 2027 and Justice Narasimha in October 2027.
The decision to constitute a Constitution bench came after an internal procedural debate within the court over whether the presidential reference, filed under Article 143 of the Constitution, must be placed directly before a Constitution bench or whether a smaller, three-judge bench could first conduct preliminary hearings and issue notices.
People familiar with the matter told Hindustan Times that the Supreme Court registry, after reviewing past Article 143 references and Supreme Court rules, advised the CJI that the reference must be taken up by a five-judge bench from the outset, even for the purpose of issuing notices to the attorney general, solicitor general and all states.
“After going through the precedents and the pertinent provisions under the Constitution and the Supreme Court rules, it was suggested that it would be in fitness of things for a five-judge bench to take up the matter even for a preliminary hearing,” said a person involved in the process.
“There was an unequivocal view that since the advisory jurisdiction under Article 143 involves a substantial question of constitutional law, it must be heard by a Constitution bench right from the beginning,” the person added.
This internal clarity follows HT’s May 21 report that the court was weighing its options, with a question raised whether a smaller bench could first entertain the reference, issue notices, and later escalate it to a larger bench.
The registry’s review reportedly considered previous Article 143 references and found that substantial questions of law arising under the advisory jurisdiction were historically taken up directly by benches of at least five judges, reinforcing the constitutional mandate under Article 145(3).
In a rare move invoking Article 143 of the Constitution, President Droupadi Murmu had on May 13 sought the Supreme Court’s advisory opinion on 14 complex legal questions following the court’s April 8 judgment that laid down timelines for governors and the President to act on state bills.
The reference asked the court to clarify whether the president and governors must follow judicially prescribed timelines despite the Constitution being silent on such timeframes, and whether such executive actions are justiciable before the courts prior to a bill becoming law.
The Supreme Court’s April 8 ruling, delivered by a bench of justices JB Pardiwala and R Mahadevan, for the first time prescribed a deadline of three months for the president to decide on a bill referred by a governor, and held that a governor must act “forthwith” or within one month on re-enacted bills. If a governor withholds assent or reserves a bill for the president’s consideration, the judgment held, this must be done within three months of its presentation. In that case, which involved 10 pending bills from Tamil Nadu, the court went so far as to invoke Article 142 to hold that the governor’s inaction was “illegal” and the bills would be deemed to have received assent.
The presidential reference has flagged several critical constitutional queries, including whether such “deemed assent” is constitutionally valid, and whether the Supreme Court can impose procedural directions on the president or governors. It questioned whether Article 142 can be used to override express constitutional provisions, and whether the president’s discretion under Article 201 can be subject to timelines or judicial review.
The reference also raised doubts over whether the April 8 judgment should have been decided by a larger bench, since Article 145(3) of the Constitution mandates that substantial questions of law must be heard by at least five judges. “This concern is being looked into seriously, and the registry’s review of precedent is crucial to determine how to proceed procedurally,” said another person familiar with the internal discussion.
Since independence, Article 143 has been invoked at least 14 times to seek the court’s advisory opinion on complex questions of law and public importance. While the court’s opinion in such references is not binding on the president, they have historically played a vital role in constitutional interpretation.
The 14 questions in the current reference were the outcome of a month-long process involving attorney general (AG) R Venkataramani, solicitor general (SG) Tushar Mehta, and the Union law ministry. After the court’s judgment was received on April 12, Mehta’s office was tasked with identifying key legal questions, and several rounds of meetings were held to refine the draft. By May 7, the final version was shared with the President’s secretariat, leading to its formal submission to the Supreme Court a week later.
“The questions go to the heart of Centre-State relations, the federal structure, and the limits of judicial and executive powers,” said a government official familiar with the drafting process. “This is not just about one judgment, but the architecture of how laws are made and how constitutional roles are performed.”
Among the issues raised in the reference are whether decisions of governors and the president under Articles 200 and 201 can be judicially reviewed before a law takes effect; whether courts can direct or substitute the president or governor’s discretion using Article 142; and whether constitutional immunity under Article 361 precludes such review altogether.
Another critical question pertains to whether disputes of this nature should only be adjudicated under Article 131 of the Constitution, which governs disputes between states and the Union, or whether the Supreme Court can resolve them through writ jurisdiction or otherwise. The reference also asks whether the governor is constitutionally bound to act on the aid and advice of the state’s council of ministers while exercising discretion under Article 200.