The Indian Constitution confers three types of jurisdiction to the Supreme Court of India – the country’s apex court. These are:
- Original Jurisdiction (Article 32),
- Appellate Jurisdiction (Article 136), and
- Advisory Jurisdiction (Article 143).
Advisory jurisdiction is mentioned under Article 143, Part V of the Indian Constitution. Historically, the idea of advisory jurisdiction came from Section 213 of the Government of India Act of 1935. In this law note, let us learn about the advisory jurisdiction of the Supreme Court.
Article 143 of the Indian Constitution
Article 143 reads as follows:
(1) When it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance, that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer it to the court for its consideration. The court then may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) A matter which is excluded from the Supreme Court’s jurisdiction under Article 131 may be referred to it for opinion, and the court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
Note: The highlighted word “may” in clause 1 indicates that the apex court is not bound to give an advisory opinion in every reference made to it. Whereas the highlighted word “shall” in clause 2 indicates a bounden duty on the apex court to provide an advisory opinion.
Nature of Article 143: Is the Opinion of the Supreme Court Binding on the President?
The apex court neither pronounces a sentence nor does it award a remedy. Here Article 143 provides advice to the executive head with respect to the question of law in discharging his duties. Hence, the advice by the apex court is not binding on the President.
Scope – Advisory or Appellate?
Whether past decisions be reconsidered? The advisory opinion of the apex court is sought on matters not decided earlier and on matters of public importance. Hence, the advisory jurisdiction cannot be converted to appellate jurisdiction.
If any reference is made to the apex court under Article 143, the same may first invoke Article 142(2).
President Reference Cases
Delhi Case Law:
In the Delhi Law Act, AIR 1951 SC, the court considered the validity of the Act concerning delegated legislation. Parliament may delegate its legislature to the extent that it is limited to not wiping out itself or withdrawing its powers. Parliament cannot delegate its “essential” legislative function to another agency, which was designed to formulate and implement a binding policy.
Kerala Education Bill Case Law:
In the Kerala Education Bill, AIR 1958 SC, the President of India referred to the court’s opinion on certain legal questions regarding the constitutional validity of certain provisions of the Kerala Education Bill, 1957.
A State policy directive principle cannot override a fundamental right, but when determining the scope of the fundamental right, it cannot be entirely disregarded by any court; instead, it should use the harmonious construction principle to make both of these as effective as possible in determining the scope of the basic right.
New India Motors Limited vs Morris:
In New India Motors Limited vs Morris, AIR 1960 SC, the sentence workmen involved in such a conflict should not only be used by those directly engaged in the dispute concerned but should also include all those working in whose name the dispute has been raised, and all those who are bound by any award made in the dispute concerned.
Berubari (Indo-Pakistan Agreements) Case:
In Berubari (Indo-Pakistan Agreements), AIR 1960 SC, the court’s judgment was aimed at determining how India could shift its territory to Pakistan. Settling the frontier dispute between India and any other state requires no constitutional amendment; executive action can be taken if it doesn’t involve a transfer of territory.
Sea Customs Act Case:
In the Sea Customs Act, AIR 1963 SC, the validity of the Sea Customs Bill on Article 288 of the Constitution has been referred to.
Keshav Sing’s Case:
President Election Case Law
In Presidential Poll, AIR 1974 SC:
Notwithstanding the fact that, at the time of such elections, the election to the Office of the President shall be held before the expiration.
In Special Courts Bill, AIR 1979 SC:
The reference to the scope of the privileges and the power of judicial reviews relating to the legislative assembly was made.
- The court considers the limitations and requirements of the advisory body to argue that the President should only submit specific legal questions with reference to the constitutional provisions that he considers to be infringed by the Bill. The President should not send a Bill for advice on its general constitutionality. It is nevertheless within the jurisdiction of the court to continue.
- The Bill is valid since it forms a separate class, that is, a reasonable grade. It only applies to people who hold high positions of a political nature. Even their crimes are more serious and therefore require a faster trial.
- Nevertheless, the period prior to the emergency cannot be classified. This court cannot be prohibited from judicial review.
Cauvery Water Dispute Case Law:
In Cauvery Water Dispute Tribunal, AIR 1992 SC, whether the court is authorized to grant interim relief to the parties was the main issue of law referred to the tribunal.
It was held that interim relief can be granted by the tribunal.
Ram Janmabhoomi Case Law:
In the matter of Ram Janamabhoomi 1993 case, the question was asked whether the original temple on the place where Babri Masjid later stood was superfluous and against secularism.
If the Supreme Court does not consider this appropriate, it may refuse to give an opinion pursuant to Article 143 by submitting and showing a reason for such rejection.
Supreme Court/High Court Judge’s Appointment Case Law:
On principles and procedure regarding the appointment of Supreme Court and High Court Judges, AIR 1999:
In accordance with Articles 217(1) and 222(1) of the Constitution of India, a consultation with the Chief Justice of India requires the consultation of a plurality of judges in the making of a view of the Chief Justice of India. The Chief Justice of India’s sole and individual opinion is not “consultation” within the meaning of these Articles.
Gujarat Assembly Case Law:
Gujarat Assembly Election Matter, AIR 2003 SC: The impact of Article 174 on the competence and the power of the Commission and the question of whether the Commission can recommend promulgating the rule for the President in a state related to the limits of the power in accordance with Article 324.
If it seems that the fulfilment of the formalities required by the statute has been made impossible due to circumstances beyond the control of the parties concerned, such as an act of God, the circumstances shall be deemed a legitimate reason.
Does Article 143 Declare Law?
The apex court held that references made under Article 143 of the Constitution are not the law declared by the Supreme Court under Article 141. Hence, despite being high coaxing value, it is not binding on inferior courts.
- 10 Types or Kinds of Jurisdiction of Indian Courts - 13th April 2022
- Malicious Charge of Offence Under Section 211 of the Indian Penal Code - 17th March 2022
- About Supreme Court of India – Collegium, Powers, Judges - 7th February 2022