Consultative Role of the Summit Court – An Overview

Consultative Role of the Summit Court – An Overview Dr. Shailendra Yadav* Some incumbents make their offices great, some offices make their incumbents great. The tragedy, as the judges have seen, is that the opposite is equally true. It may be mentioned here that advisory jurisdiction is not peculiar to India alone. Though there is difference of opinion regarding the scope and utility of the jurisdiction. The International Court of justice possenes this jurisdiction and so also the Privy Council and the old federal court of India under the 1935 Act. The court has made is clear that it will follows- The opinion on already pronounced in the refer case. Thus the court observed that[i] “In so for as the arguments advanced before this court in the reference case are concerned, they are concluded by the decision given there on and, we do not propose to go behind the opinion given by this court in that case. The case referred to was – Re Special Courts Bill, 1978.[ii] In fact in Hari Shankar v. State of Madhya Pradesh,[iii] Raj Narayan v. Patna Administration,[iv] Corporation of Calcutta v. Liberty Cinema.[v] The opinion expressed by the Apex Court in the Re Delhi Laws Act,[vi] has been followed, underlining the importance of judicial precedents. It is true, that since the opinion pronounced by Supreme Court under Article 143 is not a judicial pronouncement[vii], it is not binding on any party, it is also not binding upon the courts in India under Article 141. However, it may have a great pleasure six persuasive force. The former chief justice of India, who has retired on November 23, 2025 has made it clear that “In a presidential reference, we can not over rule a judgement, but we can lay down the law, and while laying down the law, we can observer that the law laid down, in a particular manner in a judgement is not correct.”[viii] He further said that- “If the Constitution does not provide for a timeline, we (judiciary) cannot read something that is not there. It is for the Parliament to do that.” A five Judge Bench of the Supreme Court on Thursday answered the 16th Presidential Reference the country has witnessed by opining that the judiciary cannot fetter Governors and the President to ‘one-size-fits-all’ time-tables to dispose of State Bills or usurp their functions by assuming ‘deemed consent’ of the proposed laws at the expiry of a court-ordered time frame. ‘Such a usurpation of the gubernatorial function of the Governor, and similarly of the President’s functions, is antithetical not only to the spirit of the Constitution, but also specifically, the doctrine of separation of powers – which is a part of the basic structure of the Constitution’, a Bench of Chief Justice of India B.R. Gaval, Chief Justice-designate Surya Kant, and Justices Vikram Nath, P.S. Narasimha and A.S. Chandurkar underscored in their answer. “It is an institutional responsibility, to tender its opinion on this functional reference sought by the highest constitutional functionary of the country. The court cannot shirk away from its responsibility to iron out constitutional creases.” The current reference is the result of a two-judge Bench judgment in State of Tamil Nadu versus Governor of Tamil Nadu in April 2025, that had specified a timeline of three months for Governors and the President to act on Bills passed by State legislatures. The court held that decisions by Governors and the President on such Bills are subject to judicial review. It had exercised its extraordinary power under Article 142 and granted ‘deemed assent’ to Bills passed by Tamil Nadu assembly that were not assented to by the Governor. *Assistant Professor, T.D. Law College, Peeli Kothi, Jaunpur, U.P.