Union government has objected to the judgment mandating to seek Supreme Court’s opinion on constitutionality of bills, the government said the judiciary can not dictate to the President how and when to exercise his/her discretion to seek SC’s opinion and on which issues. Faulting the judgment of 2 judge bench on 8th April 2025, through Solicitor General, said a plain reading of the President’s power under Article 143 “ shows that an absolute discretion lies with President to seek advice. The term ‘consult’ means the act of asking for advice and indicates that President is not bound to do”.
The SC does not have power to review or intervene in the legislative process before a bill becomes law. Its role begins only after a bill has been enacted into law. However, there are constitutional provisions and indirect mechanisms through which judicial review may influence the legislative process.
Constitutional Process of Law-Making
1 Introduction of Bill– A bill is introduced in either house of Parliament (except Money Bills, which can be introduced in the Lok Sabha).
2 Debate and Passage– The bill is debated, amended, and must be passed by both houses (Lok Sabha and Rajya Sabha).
3 Presidential Assent– Once passed, the bill is sent to the President for assent. The President may:
- Give assent (bill becomes law).
- Withhold assent, or
- Return (except Money Bills) for reconsideration.
4 Becomes Law-After presidential assent the bill becomes an Act of Parliament.
Role of the Supreme Court
The SC’s role in the process is post-facto, ie, after the bill becomes law. It can not interfere in the legislative process before enactment due to doctrine of separation of powers (Article 122 and 212 of the Constitution bars courts from questioning legislative proceedings).
However, there are some related aspects worth noting;
1 Judicial Review After Enactment
- The SC has the power of judicial review under Article 32 and 13, allowing it to strike down laws that violate the Constitution (particularly Fundamental Rights and the Basic structure).
- For example, in Kesavananda Bharati vs State of Kerala (1973), the court held that Parliament can not amend the basic structure of the constitution.
- Thus the court’s review comes after a law has been enacted.
2 Advisory Jurisdiction (Article 143)
- The President can refer a question of law or fact to the SC for its advisory opinion.
- This means that if the President is uncertain about the constitutional validity of bill, the President may seek SV’s advice before giving assent.
- However, the SC’s advisory opinion is not binding on the President.
- Example: Special Courts bill, 1978- The President sought the SC’s advice on whether the bill violated the constitution. The SC gave its advisory opinion.
3 Preventive Intervention- Extremely Limited
- In rare situations, the SC may issue directions or interim orders to prevent constitutional violation during the legislative process, but this is exceptional and generally avoided.
- The judiciary maintains restraint until a law is enacted, respecting the autonomy of Parliament.
Comparisons with Other Systems
- USA- The SC can not preemptively review bills, it reviews bills only after laws are challenged.
- 2 UK (Parliament Sovereignty)- Courts can not strike down laws at all, only interpret them.
- India: A middle ground-courts can not intervene before enactment but can strike down unconstitutional laws after they are enacted.
Key Judicial Principles
- Separation of Powers: legislature makes law, Judiciary reviews them post-enactment.
- Doctrine of Judicial review: Laws violating the Constitution can be struck down, but only after they become enforceable.
- Presidential Discretion with Judicial Advice: Article 143 allows pre-enactment advisory reference, but not judicial review initiated by SC itself.
In the end, the Indian SC can not ask to review a bill before it becomes law. Its role begins only after the bill has received the President’s assent. The only exception is when the President refers the bill under Article 143 for advisory opinion, which is optional and non-binding.
This framework ensures a balance of power: Parliament retains autonomy in law-making, the President safeguards constitutional compliance through assent powers, and the Judiciary acts as the guardian of the Constitution by reviewing enacted laws. Thus, while the SC is the ultimate interpreter of the Constitution, it does not have the authority to intervene in the legislative process before a bill become a law.
In reality there are many laws where SC intervene after they were passed, examples are The National Judicial Appointment Act (NJAC), Aadhar, Section 66A of the Information Technology (IT) Act 2000.
Waiting for your feedback on this blog.
Anil Malik
Mumbai, India
18th August 2025