RESEARCH PAPER

SUBJECT: CONSTITUTION LAW II

TOPIC: ADVISORY JURISDICTION OF SUPREME

COURT

SUBMITTED BY: SURYA TEJA MP

REGISTER NO.: 18DBALB046

CLASS AND SEMESTER: 2ND YEAR; 3RD SEMESTER

DATE OF SUBMISSION: OCTOBER 9, 2019

SIGNATURE:
CONTENTS

1. TABLE OF CASES
2. INTRODUCTION
3. SCOPE OF STUDY
4. RESEARCH OBJECTIVE
5. RESEARCH QUESTION
6. BACKGROUND OF ADVISORY JURISDICTION
7. ADVISORY JURISDICTION OF SUPREME COURT
8. EXPLANATION OF ARTICLE 143
9. REFERENCES MADE TO SUPREME COURT
TABLE OF CASES

1. In re the Delhi Law Act, AIR 1951 SC 332

2. In re the Kerala Education Bill, AIR 1958 SC 956

3. In re New India Motors Ltd. v. Morris, AIR 1960 SC 875

4. In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845

5. In re the Sea Customs Act, AIR 1963 SC 1760

6. In re Keshav Sing’s Case, AIR 1965 SC 745

7. In re Presidential Poll, AIR 1974 SC 1682

8. In re Special Courts Bill, AIR 1979 SC 478

9. Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522

10. Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642

11. Re on Principles and Procedure regarding appointment of Supreme Court and High
Court Judges, AIR 1999 SC 1

12. Gujarat Assembly Election Matter, AIR 2003 SC 87

INTRODUCTION

The Supreme Court of India is the highest judicial court and the final court of appeal under
the Constitution of India. It is the highest constitutional court with the power of judicial
review. The jurisdiction of the Supreme Court is mentioned under Articles 124 – 147 of the
Constitution of India. This jurisdiction is of three types:

1. Appellate Jurisdiction

2. Original Jurisdiction

3. Advisory jurisdiction

The Supreme Court of India has been given advisory jurisdiction under which it may advice
the President on the issues for which he seeks advice for such issues being largely associated
with public importance. This provision has been given under Article 143 of the Indian
Constitution, which reads as under: -

(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.

The sub clause (1) of the said article reproduced Section 213 of the Government of India Act,
1935 (hereinafter referred to as G. I. Act, 1935)with some alteration, keeping the substance
same. But sub clause (2) was newly added.
SCOPE OF RESEARCH

It is important to know the use of advisory jurisdiction as under article 143 of the Indian
constitution. I have used internet articles for this research.

RESEACH OBJECTIVES

The main objective of this paper is to understand the advisory jurisdiction of the Supreme
Court of India.

RESEARCH QUESTIONS

i. Where is the concept of advisory jurisdiction sourced from?

ii. Is the Supreme Court bound to give its advice?

iii. Is the President bound to follow the advice given by the Supreme Court?

iv. At what grounds is the President having the power to consult the Supreme
Court?

v. Is the advice given by the Supreme Court binding on all Courts?

vi. Are there any instances where the President has referred the Supreme
Court?
BACKGROUND OF ADVISORY JURISDICTION

The Advisory jurisdiction of the Supreme Court in the Constitution has its source in
Government of India Act, 1935. It adopts the provision of Section 213(1) of the Government
of India Act, 1935, to confer an advisory function upon the Supreme Court as was possessed
by the Federal Court before the Indian Independence.

Section 213 of the Government of India Act, 1935 laid down on the lines of „the White Paper
proposals‟ that if at any time it appears to the Governor-General that a question of law 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 Federal Court upon it, he may, in his discretion, refer
the question to that court for consideration and the court may, after such hearing as it thinks
fit, report to the Governor-General thereon.

On clause 101 of his 30 October, 1947 first Draft Constitution, after the Indian Independence,
the Constitutional Advisor very largely reproduced the provision of the 1935 Act after
substituting „President‟ for „Governor-General‟ and „Supreme Court‟ for „Federal Court‟.

Article 119 of the Draft Constitution prepared by Drafting Committee (21 February, 1948),
replaced clause (2) of the Constitutional Advisor‟s draft. On 27 May, 1949 when the draft
article came up for discussion in the Constituent Assembly, H.V.Kamath moved an
amendment to the effect that in clause (2) for the word „decision‟ the word „opinion‟ and for
the words „decide the same and report the fact to the president‟ the words „submit its opinion
and report to the President‟ be substituted. At the revision stage, draft Article 119 was
renumbered as Article 143 of the Constitution.
ADVISORY JURISDICTION OF SUPREME COURT

Article 143 of the Indian Constitution confers upon the Supreme Court advisory jurisdiction.
The President may seek the opinion of the Supreme Court on any question of law or fact of
public importance on which he thinks it expedient to obtain such an opinion. On such
reference from the President, the Supreme Court, after giving it such hearing as it deems fit,
may report to the President its opinion thereon. The opinion is only advisory, which the
President is free to follow or not to follow.1 However, even if the opinion given in the
exercise of advisory jurisdiction may not be binding, it is entitled to great weight.

The first reference under Article 143 was made in the Delhi Laws case, (1951). In almost
sixty-nine years, only twelve references have been made under Article 143 of the
Constitution by the President for the opinion of the Supreme Court:

13. In re the Delhi Law Act, AIR 1951 SC 332

14. In re the Kerala Education Bill, AIR 1958 SC 956

15. In re New India Motors Ltd. v. Morris, AIR 1960 SC 875

16. In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845

17. In re the Sea Customs Act, AIR 1963 SC 1760

18. In re Keshav Sing’s Case, AIR 1965 SC 745

19. In re Presidential Poll, AIR 1974 SC 1682

20. In re Special Courts Bill, AIR 1979 SC 478

21. Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522

22. Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642

23. Re on Principles and Procedure regarding appointment of Supreme Court and High
Court Judges, AIR 1999 SC 1

24. Gujarat Assembly Election Matter, AIR 2003 SC 87

1
Keshav Singh‟s Case, AIR 1965 SC 745, (India).
EXPLANATION OF ARTICLE 143

Article 143 is not part of administration of justice. It is part of advisory machinery designed
to assist the President who according to Article 53 is the Executive of the Union. Article
143(1) is couched in broad terms which provide that any question of law or fact may be
referred by the President for the consideration of the Supreme Court.

The Supreme Court has held in In re the Kerala Education Bill2, 1957 that the use of the
word “may” in Article 143(1), in contradiction to the use of the word “shall” in Article
143(2) shows that whereas in a reference under Article 143(2) the Supreme Court is under an
obligation to answer the questions put to it, under Article 143(1) it is discretionary for the
Supreme Court to answer or not to answer the questions put to it.

The President‟s reference under Article 143(1) to the Supreme Court in In re The Special
Courts Bill1978 3(“the special courts reference) raised important questions of constitutional
law. The facts giving rise to the Special Courts Reference were briefly these:

When the former Prime Minister, Mrs. Indira Gandhi revoked the emergency after her defeat
in the 1977 Parliamentary elections, the overwhelming demand arose in the country for the
punishment of Mrs. Gandhi, her son Sanjay and other guilty men. The investigations of the
Shah Commission left no doubt that there had been grave abuse of power during the
emergency. Justice to countless victims of the Emergency demanded that the guilty should be
brought to trial. However, the ordinary process of law is dilatory and Mrs. Gandhi‟s party
made no secret that the weapon of delay would be used to prevent the “guilty men” from
being brought to speedy trial. Consequently, a private member, Mr. Ram Jethmalani,
introduced in the House of the People (Lok Sabha) a Bill for the setting up of Special Courts.
On 1 August, 1978 the President acting under Article 143, referred the following questions
for the opinion of the Supreme Court.

1. Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally
invalid.

2
In re the Kerala Education Bill, AIR 1958 SC 956, (India).
3
In re Special Courts Bill, AIR 1979 SC 478, (India).
2. The nature of the Supreme Court‟s power under Article 143(1) and whether the law
laid down in the opinions is “the law laid down by the Supreme Court” under Article
141.

While dealing the above question, CHANDRACHUD C.J. said that the question whether the
law laid down in the opinions was “law declared by the Supreme Court” would require to be
considered more fully on a future occasion. He observed that:

“It would be strange that a decision given by this Court on a question of law in a dispute
between two private parties should be binding on all courts in this country but the advisory
opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice
to all interested parties, after hearing everyone concerned.”

He was aware that Supreme Court decisions had held that it was not law within Article 141,
but he supported the need for future consideration.

Article 143 does not deal with „jurisdiction‟ of Supreme Court but with the „power‟ of the
President. It does not refer to any adjudication at all, but with consultation. There is to be no
judgment, decree or order; there is to be Opinion to be forwarded to the President in a report
to him. The Supreme Court itself would however remain free to re-examine and if necessary
to overrule the view taken in an opinion under Article 143(1). It was held in Cauvery Water
Disputes Tribunal 19924, that the jurisdiction under Article 143(1) cannot be used to
reconsider any of its earlier decisions. This can be done only under Article 137 of the
Constitution.

4
Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522, (India).
REFERENCES MADE TO SUPREME COURT

In the matter of Cauvery Dispute Tribunal5, a tribunal was appointed by the central
government to decide the question of waters of river Cauvery which flows through the states
of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991 directing the
State of Karnataka to release a particular quantity of water for the state of Tamil Nadu. The
Karnataka government resented the decision of the Tribunal and promulgated an Ordinance
empowering the government not to honor the interim Order of the Tribunal. The Tamil Nadu
government protested against the action of the Karnataka government. Hence the President
made a reference to the Supreme Court under Article 143 of the Constitution. The Court held
that the Karnataka Ordinance was unconstitutional as it nullifies the decision of the Tribunal
appointed under the Central Act (Inter Sate Water Dispute Act, 1956) which has been enacted
under Article 262 of the Constitution. The Ordinance is also against the principles of the rule
of law as it has assumed the role of a Judge in its own cause.

In a landmark judgment in Ismail Faruqui v. Union of India6, the five judge bench of the
Supreme Court held that the Presidential reference seeking the Supreme Court‟s opinion on
whether a temple originally existed at the site where the Babari Masjid subsequently stood
was superfluous and unnecessary and opposed to secularism and favoured one religious
community and therefore, does not required to be answered. Therefore, in this case it was
held that the Supreme Court may decline to give its opinion under Article 143 in cases it does
not consider proper or not amenable to such exercise.

In Delhi Laws Act case7, the Court considered the validity of the Act with regard to delegated
legislation. In Re Kerala Education Bill8, the Bill was reserved for consideration of the
President who referred to the Supreme Court to give its opinion on its validity. In re Berubari
Union(1960)9, opinion of the court was sought to find out the manner in which the territory of
India could be transferred to the Pakistan. In Re Sea Customs Act (1962)10, to consider the
validity of the Sea Customs Bill with reference to Article 288 of the Constitution. The Special

5
Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522, (India).
6
Ismail Faruqui v. Union of India, AIR 1994 SC 360, (India).
7
In re the Delhi Law Act, AIR 1951 SC 332, (India).
8
In re the Kerala Education Bill, AIR 1958 SC 956, (India).
9
In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845, (India).
10
In re the Sea Customs Act, AIR 1963 SC 1760, (India).
Court reference case (1978)11, also known as Keshav Singh‟s case, the reference was made to
consider the extent of the privileges of the legislature and the power of the Judicial reviews in
relation to it. In re Presidential Bill (1974), consideration of certain doubts in regard to
Presidential election was sought. In all these cases the Supreme Court came with various
interpretations of Article 143 of the Constitution.

IS THE COURT BOUND TO GIVE ITS OPINION?

The Supreme Court is not bound to give its opinion. Rather, the Supreme Court may decline
to give its opinion under Article 143 in cases it does not consider proper or not amenable to
such exercise. It was, however, held by the Supreme Court in M. Ismail Faruqui v. Union of
India (AIR 1995 SC 605) that in that case, reasons must be indicated.

In Re Kerala Education Bill, 1957 the Bill was reserved for consideration of the President
who referred to the Supreme Court to give its opinion on its validity. The Supreme Court held
in In re the Kerala Education Bill, 1957 that the use of the word “may” in Article 143(1), in
contradiction to the use of the word “shall” in Article 143(2) shows that whereas in a
reference under Article 143(2) the Supreme Court is under an obligation to answer the
questions put to it, under Article 143(1) it is discretionary for the Supreme Court to answer or
not to answer the questions put to it.

On a Presidential reference seeking the Supreme Court‟s opinion on a question “whether a

temple originally existed at the site where the Babri Masjid subsequently stood” was refused
to be answered by the five judge bench of the Supreme Court on the ground that the question
was superfluous and unnecessary and opposed to secularism and favoured one religious
community and therefore, does not required to be answered. Ismail Faruqui v. Union of
India (1994) 6 SCC 360.

11
In re Special Courts Bill, AIR 1979 SC 478, (India).
CONCLUSION

Apart from the original and appellate jurisdiction, the Supreme Court is also provided with
advisory jurisdiction. This jurisdiction is provided under the Article 143 of the constitution.
There have been many questions about the nature and scope of this article arising out of its
text.

Although only some cases have been referred under this article, but it still holds its
importance as it provides guidance to the government on question of its legal powers and
functions while simultaneously assuring the public as to the constitutionality of a legislation
being enacted or the power being pursued. It was additionally held by the Supreme Court that
the references made under this Article are not the "law pronounced by the Supreme Court"
under Article 141 of the Constitution. So it isn't binding on mediocre courts, despite the fact
that have high convincing worth.

Every coin has two sides with pros and cons. The advisory jurisdiction of the Indian Supreme
Court is not just a constitutional framework to reach to a solution to problems and answering
a question regarding question of law and fact but also a permissible legal method to seek
authentic legal opinion from the Apex Court of the Land.

After analysing the text of Article 143 and certain case laws this article talks about the power
conferred on the President rather than the jurisdiction of Supreme Court, and since this
concerns with the executive mechanism and not administration of Justice, the advisory
opinion would only be treated as the opinion of judicial officers and would not serve as a
binding force on lower courts nor would it serve as a binding on the president.
WEBLIOGRAPHY

1. Akshada Dhagamwar and Supriya Dash, THE ADVISORY JURISDICTION OF THE

SUPREME COURT OF INDIA: A STUDY, INTERNATIONAL JOURNAL OF LAW
AND LEGAL JURISPRUDENCE STUDIES, VOLUME 5 ISSUE 1, ( Oct 5, 2019),
http://ijlljs.in/wp-content/uploads/2018/10/Advisory-Jurisdiction.pdf.
2. Raghavendra Pratap Singh, ADVISORY JURISDICTION (ARTICLE 143) ,
ACADEMIKE, ( Oct 5, 2019), https://www.lawctopus.com/academike/advisory-
jurisdiction-article-143/.
3. N. Pradhan, ADVISORY JURISDICTION OF THE SUPREME COURT-IS THE
COURT BOUND TO GIVE ITS OPINION, LEGALSERVICEINDIA, ( Oct 5, 2019),
http://www.legalserviceindia.com/legal/article-576-advisory-jurisdiction-of-the-
supreme-court-is-the-court-bound-to-give-its-opinion.html.