Apart from Donald Trump, elite lawyers and judges also have a special fondness for the game of golf. In golf, there is something called a “mulligan“: that is, a “second chance shot when a golfer has hit a poor tee shot that they would rather forget!” Needless to say, mulligans cannot be used in competitive golf, but only in “friendly” games.
How is the mulligan relevant to this blog? It is because the Supreme Court, in its recent hearing of the Presidential Reference in Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India, looks set to establish a previously unheard-of concept: a constitutional mulligan, which is granted solely to the central executive.
By way of brief context, as is well-known, in May 2025, in State of Tamil Nadu vs Governor of Tamil Nadu, a two-judge bench of the Supreme Court interpreted Articles 200 and 201 of the Constitution, and – among other things – set timelines on how long – under ordinary circumstances – Governors and Presidents could “sit” on legislative assembly bills. Very soon after this, the President of India invoked Article 143 of the Constitution to refer fourteen questions to the Supreme Court of India, under its advisory jurisdiction.
Now, it so happened, that eleven out of these fourteen questions were the subject matter of State of Tamil Nadu vs Governor of Tamil Nadu. Consequently, they had already been answered by a two-judge bench of the Supreme Court. Curiously, however, the entire Presidential Reference makes no mention of the judgment (which had been delivered a week before): it is as if the judgment did not exist, had never been delivered, and this was the first time that the Court was being asked to deliberate on these issues.
It should, therefore, quite obviously follow that if the President has put to the Court “questions” about what the position of law is, and the position of law has been declared by a previous judgment of the Court, then the only possible answer that the Court can now give is that these questions already stand answered, and refer the President to the precedent. If the Court were feeling generous, it could even give some additional advice, to prevent such superfluities in the future: that if the President – acting on the aid and advice of the Union – disagreed with the outcome of a judgment, then the correct course of action would be to file a review petition, or – in a future case – ask for a reference to a larger bench.
That is not, however, how the hearings in the Presidential Reference – which was argued extensively in August and September – proceeded. The bench brushed aside initial objections on the maintainability and propriety of hearing the reference, and then proceeded to conduct what can only be called a de novo merits re-hearing (in its advisory jurisdiction) of the issues that had been decided a few months ago (by the same Court, exercising its regular, contentious jurisdiction). How did the bench justify this? During the course of oral arguments, two things stood out for how often they were repeated. First, the bench – headed by CJI Gavai – kept rhetorically asking if a “five-judge bench is bound by a two-judge bench” – and indeed, seemed to take affront at the possibility that the answer might be “in this case, yes.” And secondly, the bench kept repeating that it would “not look at the State of Tamil Nadu decision” while rendering its opinion.
Let us briefly look at both questions. The first – one almost hesitates to say – proceeds on a misunderstanding of constitutional law 101. Let us take an extreme example: five judges – or seven, or nine, or twenty-nine – go golfing together, and while they are taking their mulligans and trying to forget their bad tee shots, they start discussing the State of Tamil Nadu judgment. In doing so, are these five, or seven, or twenty-nine judges not bound by the judgment? Of course they are bound, because “5 judges >>> 2 judges” is not how it works. Five judges are not bound by two judges if and when those five judges are in a bench that is exercising the same jurisdiction as the previous two-judge bench was. For example, if subsequently another two-judge bench, faced with a question about the interpretation of Article 200, referred the case to the Chief Justice, and a larger bench was constituted, that bench would not be bound by the two-judge bench judgment. If, however, five judges are asked, in their advisory jurisdiction, for their opinion on what the law is, then they are bound to tell the President that the law is what has been settled by the previous judgments of the Court.
The second proposition is even more astonishing. Because, in the example of the reference discussed above, the five-judge bench, even though not bound by the two-judge bench, would be required to take its judgment into account, engage with it, and only depart from it if it felt that there were very strong reasons to do so (not simply if it felt there were two views, and it was of a different view). But here, not only did the bench declare itself not bound by precedent, but also liberated itself from even looking at the precedent. In essence, as noted above, it is as if the State of Tamil Nadu judgment never existed.
Why is this seemingly technical quibble of vital importance? It is important because, through these two propositions, if in the future, the Union of India loses a case, it can make a Presidential reference that asks the same questions that were decided in the case, make no mention of the case itself, and get an entirely fresh, second bite at the cherry – a “constitutional mulligan.” And most crucially, as only the Union of India can make a Presidential Reference, what the bench has effectively done is to say that every litigant before the Supreme Court of India gets one shot at a fresh hearing, except for the Union, which gets two. In effect, the bench has carved out a special privilege within the Constitution only for the central executive.
Indeed, while taking place within the formal “advisory” jurisdiction of the Court, there was nothing about these hearings that were even remotely advisory: these hearings were conducted like a full-fledged adversarial dispute between two contending parties, complete with even a rejoinder by the Union of India. At this point, we may as well give up the mask of the “advisory” hearing, and agree that what happened was a full-fledged re-hearing of a decided case, but under a procedure previously unknown, and one that can, in the future, only be initiated by the central executive.
A final, somewhat ironic point: the State of Tamil Nadu judgment was rendered in a specific factual contexts (as judgments should be), and the Court’s interpretation of Articles 200 and 201 was informed by the constitutional practice placed before it. However, during the Presidential Reference hearings, the bench refused to consider constitutional practice, and stressed that it would render its opinion on the abstract questions of law before it. Why do I say this is ironic? I say so because in the history of the Supreme Court, its most landmark judgments have been re-interpretations of the Constitution based on its working over the years. In Maneka Gandhi, the Court rewrote Article 21 based on experience. But even more ironically, the collegium system – under which all the present judges of the Court have been appointed – owes its existence to a sweeping reinterpretation of the Constitution based on the experience of executive interference with the judiciary. To this day, in fact, the judgment that established the collegium – which has no basis in the constitutional text – is defended on the ground that it was necessitated by experience. Suddenly, however, the life of the law no longer seems to be about experience. One wonder why.
Many years ago, during my clerkship with a judge, I too was taken to play some golf. I was terrible at it, and gleefully made use of my mulligans. I remember wistfully wishing that we were all given mulligans not just in golf, but in life. It would make everything so easy. In its Presidential Reference, the Supreme Court has granted the executive a lifetime of free mulligans. If only we all had it so easy.