This article provides readers with a comprehensive understanding of the concept of advisory jurisdiction of the Supreme Court. So, whether you are a law student or a lawyer curious to know legal concepts, or whether you are preparing for the Advocate on Record Examination, this article is for you.
Table of Contents
Introduction
A few days back, I was reading the newspaper when I stumbled upon something.
The headlines said
Apparently, the President of India had invoked a Presidential Reference to seek the opinion of the Supreme Court on 14 questions regarding the timeframe for Governors and the President to act on State Bills.
Now, most people would probably just move on to the next news, but my curious legal mind started buzzing.
You see, I have always been the kind of person who opens one Wikipedia tab and ends up opening 20 others.
So naturally, I could not stop myself from digging deeper.
When I started learning about this topic, I found that this question was asked in the Advocate on Record (AOR) examination, too.
I thought to myself, why not teach this topic to the law students, my fellow lawyers, and AOR aspirants out there?
So here I am to teach you about what is called the advisory jurisdiction of the Supreme Court.
Are you all excited? Let us begin, then.
The Supreme Court of India, being the highest Court in India, enjoys certain additional powers by virtue of what has been laid down in the Constitution.
One such power is enshrined in Article 143 of the Constitution, wherein the Supreme Court of India has been given advisory jurisdiction under which it may advise the President on the issues on which he seeks advice, as such issues are largely associated with public importance.
We will first see the evolution of advisory jurisdiction.
How has the advisory jurisdiction of the Supreme Court evolved?
The advisory jurisdiction of the Supreme Court in the Constitution evolved from the Government of India Act,1935.
Section 213(1) of the Government of India Act,1935 conferred an advisory function on the Supreme Court similar to that possessed by the Federal Court.
Section 213 states that if a question of law has arisen or is likely to arise, and if the Governor-General considers it of public importance and it is expedient to obtain the opinion of the Federal Court upon it, then the Governor-General may refer the question to the Federal Court for consideration.
On 30th October, 1947, the Constitutional Advisor reproduced the provision of the Government Act,1935, and substituted the terms “President” with “Governor-General” and the “Supreme Court” with “Federal Court”.
Article 119 of the Draft Constitution prepared by the Drafting Committee on 21st February,1948, replaced clause (2) of the draft.
Later in 1949 when the draft article came up for discussion in the Constituent Assembly then an amendment was made to the effect that in clause (2) for the word “decision” the word “opinion” and for the word “decide” the same and report the fact to the president the words “submit its opinion and report to the President” were substituted. ‘
At the revision stage, the draft Article 119 was renumbered as Article 143 of the Constitution.
Let us see the difference between the scope of Section 213 of the Government of India Act,1935, and Article 143(1) of the Constitution.
How is the scope different under section 213 vis-à-vis Article 143(1) of the Constitution?
Article 143(1) of the Constitution is based on Section 213 of the Government of India Act,1935 with one major difference i.e. only question of law could be referred to Federal Court, however, under Article 143 of Constitution of India both questions of law or of fact can be referred to the Supreme Court for its opinion and advice.
Now, let us look at the advisory jurisdiction of the Supreme Court.
What is the advisory jurisdiction of the Supreme Court?
Besides the regular jurisdictions as mentioned above, the Supreme Court has an advisory jurisdiction to give its opinions on any questions of law or fact concerning public interest or public importance.
The Supreme Court gives its advice as and when any question is referred to it by the President.
The Supreme Court may be required to express its opinion in these matters, in an advisory capacity as distinguished from its judicial capacity.
You must even know the difference between regular jurisdiction and advisory jurisdiction of the Supreme Court.
What is the difference between regular jurisdiction and advisory jurisdiction of the Supreme Court?
There is no litigation between the parties when the Supreme Court exercises its advisory jurisdiction.
The opinion given by the Supreme Court while exercising its advisory jurisdiction does not have a binding force or effect, contrary to a judgment of the Supreme Court.
Let us now look at the powers of the President under Article 143 of the Constitution.
What are the powers that are conferred upon the President under Article 143 to consult the Supreme Court?
The advisory jurisdiction exercised over the matters that have been referred to the Supreme Court by the President under Article 143 of the Constitution is also known as the consultative jurisdiction or function of the Court.
The following are the powers that are conferred upon the President to consult the Supreme Court:
- As we discussed above, the President may refer any question to the Supreme Court that is of public importance.
- The question may be related to the discharge of duties and functions of the President, and it may be related to the questions that have not arisen but may arise in the future.
Let us now see the questions referred to the Supreme Court by the President.
What are the questions that the President has referred to the Supreme Court?
- The constitutionality of existing law
- The constitutionality of a bill is presented to the assent of the President.
- The implementation of an international agreement
- The constitutionality and vires of an assent
- The respective jurisdiction of the legislature and the superior courts regarding the power of the former to punish for contempt.
- Interpretation of constitutional provisions regarding the election of the President
- Power of an inter-state water dispute tribunal and power of the State to legislate regarding such a Tribunal.
- Whether a Hindu temple existed at a particular state, etc.
Now that we have seen the questions, let us see whether the Supreme Court can evaluate the questions beyond the limits prescribed by the President.
Can the Supreme Court evaluate a question beyond the limits as prescribed by the President?
No, the Supreme Court cannot do so.
The same was discussed in the case of In re Kerala Education Bill (AIR 1958 SC 956), wherein the President sought the opinion of the Supreme Court on the Constitutional validity of certain provisions of the Kerala Education Bill, which had been reserved by the Governor for the opinion of the President.
In this case, it was clarified that “it is for the President to determine what questions should be referred and if he does not entertain any serious doubt on other provisions of the Court, cannot give any opinion on it.”
Hence, the court cannot go beyond the reference and discuss those problems. If a particular reference has been made with regard to the matter, then the Court cannot go beyond to exercise its jurisdiction in going beyond the issues referred.
One more important question is whether the question of fact or law that may arise in the future will be referred to or not.
Can the question of fact or law that may arise in the future be referred to the Supreme Court?
Yes, the scope of Article 143 (1) is very broad.
Hence, if the question of fact or law that may even arise in the future is referred to the Supreme Court, the Court has to act upon certain assumptions and hypotheses while giving its opinion after giving a hearing as it thinks fit.
The court confirmed in the Special Reference case of the Gujarat Assembly election matter (AIR 2003 SC 8) that a question that may arise in the future can be referred to it.
You must be wondering whether the advisory jurisdiction of the Supreme Court is discretionary or mandatory in nature.
Let us discuss in detail.
Is the “advisory jurisdiction” of the Supreme Court discretionary or mandatory?
A. Discretionary in nature.
The advisory jurisdiction of the Supreme Court under Article 143, clause 1, is discretionary in nature.
Article 143, clause 1 reads as under:
“He may refer the question to the Court for consideration and the Court may, after such a hearing as it thinks fit, report to the President its opinion thereon.”
Here, the term “may” provides clarity that the Court is not bound to answer the questions in each case.
The Court had discretion in the matter wherein it may propose an answer or may even decline to express its opinion on any particular issue raised before it.
The instances where the Supreme Court may refuse to give its opinion include any question based on any political issue or if the Court does not think it proper to reply to the question referred to it.
The Supreme Court is thus not bound to answer the questions raised before it by the President. The Court has the discretion to reply to the question or to refuse to present any opinion.
It must be noted that a question raised before the Court regarding a bill cannot be declared as a hypothetical question, as it may undergo fundamental changes by amendment.
B. Obligatory in nature
The advisory jurisdiction of the Supreme Court is obligatory in nature as per clause 2 of Article 143 of the Constitution.
Let us discuss it in detail below:
Article 143, clause 2 of the Constitution provides that “the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.”
The term “shall” under clause 2 is obligatory in nature. However, the Court may decline to answer even in a case coming under clause 2, where the question is incapable of being answered on the reference.
If the President has referred only some questions regarding the validity of a Bill or an Act, and not others which also appear to arise, there is no good reason for the Supreme Court to decline to entertain the reference.
When the question is referred to the Supreme Court regarding the constitutionality of a bill, the reference should specify the particular ground or grounds on which the bill or any of the provisions are open for attack under the constitutional provisions.
It is pertinent to note that the question of the constitutionality of a bill that is pending for consideration by the Parliament cannot be termed as political, as the power to declare upon the constitutionality of a law is based on the exclusivity of the Court.
Article 143 (1) of the Constitution confers powers upon the Supreme Court to exercise its advisory jurisdiction even before the bill is passed and enacted into law.
The Parliament has to consider the question of constitutionality of a bill; however, where the Supreme Court has given an opinion under Article 143, clause 1, the Parliament takes notice of the opinion of the Supreme Court.
Moving on, let us understand whether the Supreme Court is obliged to opine on the constitutionality of any Bill or any provision.
Whether the Supreme Court is obliged to opine on the constitutionality of any Bill or any provision?
The Supreme Court is not bound to opine when certain questions referred to it by the President are vague in nature. More specifically, we can say that the Court can refuse to perform a legislative function.
A similar question was raised in the Special Courts Bill, In re, AIR 1979 SC 478, wherein the Supreme Court was requested to perform the function of the legislature.
The Court rejected them on the ground that the contenders were unable to pinpoint any specific power or privilege that was being encroached upon.
I will also teach you about the binding force of this advisory opinion given by the Supreme Court.
Does an advisory opinion of the Supreme Court have a binding force?
- On the President
The advisory opinion given under Article 143 of the Constitution is not a judgment passed by the Supreme Court, and hence, the said opinion does not have any binding impact as a judgment of the Supreme Court.
Hence, we can say that the opinion of the Supreme Court given under the said provision does not have a binding force or effect on the President.
- On the Subordinate courts
The opinion of the Supreme Court has a very strong persuasive value. However, we cannot say that it is the law of the land, and it is also pertinent to note that it does not hold any precedential value.
Now we will look at the procedure of the Court upon a reference.
What is the procedure of the Court in a reference under Article 143 of the Constitution?
Order XLII of the Supreme Court Rules, 2013 deals with Special reference under Article 143 of the Constitution.
- Steps taken by Registrar: Upon receiving the order of the President referring a question of law or fact under Article 143, the Registrar notifies the Attorney-General for India to appear before the Court. The Court determines which parties should be served with notice of the reference and may order such notices to be issued.
- Notice to parties: The notice requires parties served, who wish to be heard, to attend Court on a specified date to receive directions regarding statements of facts, arguments, and the date of hearing, as per the order of the Court.
- Procedure for reference: The Court follows a procedure similar to that of its original jurisdiction for references under Article 143, with appropriate variations as deemed necessary or directed by the Court.
- Transmission of report: After the hearing, the Registrar transmits the report of the Court on the reference to the President.
Finally, we will look at the past references made by the President to the Supreme Court.
What are the references made by the President to the Supreme Court?
1. In re Berubari, Union, AIR 1960 SC 845
The question that was referred to was regarding the implementation of a bilateral agreement between India and Pakistan for the cessation of some parts of the Indian Territory to Pakistan. The issue raised was whether a simple enactment would be sufficient to implement the agreement. The Supreme Court opined that a simple enactment would not be sufficient, and an amendment under Article 368 should be brought about to implement the agreement.
2. Ram Janma Bhumi- Babri Masjid (1993) 1 SCC 642
The matter was referred to the Supreme Court based on the factual issue of whether there existed a Hindu temple or a Babri Masjid on the disputed land. The reference was answered by the Supreme Court. The Court contended that the Presidential reference seeking the opinion of the Supreme Court on whether there was initially a temple, whether the Babri Masjid later stood, was unnecessary and superfluous. It added that it was against the concept of secularism that leads to favouritism to one religion over another, and hence, the Court refused to answer the particular question and give its opinion.
3. Natural Resources Allocation, In re,(2012) 10 SCC 1
In this case, the reference was made by the President in connection with the judgment awarded in the 2G spectrum case. The Supreme Court dismissed the contention that such a reference is not maintainable under the scope of Article 143. It reasoned that it seeks to overturn the judgment delivered by the Court. It was further opined by the Court that the reference could be made to the extent that does not require overruling of its judgment. However, the Court answered 5 out of 8 questions referred to it.
Conclusion
To conclude, Article 143 of the Constitution gives the power to the President to make references to the Supreme Court, wherein the Court exercises its advisory jurisdiction on any matters referred to the Court. However, we cannot say that it is a mandatory function of the jurisdiction of the Supreme Court.
As we discussed above, the views taken by the Court are not binding on the President.
The advisory jurisdiction of the Supreme Court acts as a link between the government and the judiciary. The opinion rendered by the Supreme Court is very important, but taking into account the non-binding nature of the opinion, it can be said that it does not violate the principles of separation of powers.
After analysing the Presidential references made to date, it can also be inferred that the power is used cautiously by the executive, which has thereby significantly reduced the chances of being misused.
Frequently asked questions (FAQs)
1. Can disputes excluded from the original jurisdiction of the Supreme Court be referred under the advisory jurisdiction to the Supreme Court?
The disputes that are specifically excluded from the original jurisdiction of the Supreme Court by proviso to Article 131 can be referred to the Court under its advisory jurisdiction.
Although such disputes cannot be referred to the Supreme Court under its original jurisdiction, the subject matter of such disputes may be referred to the Court by the President for the advice and opinion of the Supreme Court in its advisory capacity.
2. If the Supreme Court has already pronounced a judgment on a question of law, can the President of India refer the same question to the Court?
No. In case the Court has already pronounced a judgment on a question of law, then it cannot be said that a doubt exists regarding that question.
The President can refer a question of law only when the Supreme Court has not decided it.
3. Who bears the costs of proceedings in an Article 143 reference?
According to Order XLII Rule 5 of the Supreme Court Rules, 2013, the Supreme Court may issue orders regarding the costs incurred by parties served with notice and appearing at the hearing of the reference under Article 143 of the Constitution.
4. Can individuals or entities directly request the President to refer a matter to the Supreme Court under Article 143 of the Constitution?
No, only the President of India can initiate a reference under Article 143 of the Constitution.
5. How long does the Supreme Court typically take to deliver an opinion in an Article 143 reference?
The timeline for delivering an opinion under Article 143 varies depending on the complexity of the question and the schedule of the Court.
But it typically takes several months to a year from the date of reference to the final report.
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