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Advisory Jurisdiction

The term jurisdiction is defined as the power of the court to hear the matter. The constitution of India provides a system where the judiciary is an independent body. Every state has got its own High Court and The Supreme Court of India is the apex court of the country. The Supreme Court of India came into existence on 28th January 1950. It replaced the Federal Court of India and Judicial Committee of the Privy Council which were the apex court before Supreme Court came into existence.

The Supreme Court of India has Original, Appellate and Advisory Jurisdiction. The Original Jurisdiction gives the power to the Supreme Court to hear the matters which are concerned with: Firstly, the dispute between the Government of India and one or more States. Secondly, if there is a dispute among the states. Thirdly, under Article 32[1] the Supreme Court has the Jurisdiction to hear in regard to enforcement of the fundamental rights. It can issue directions, orders or writs. The Supreme Court has the jurisdiction of international commercial arbitration under Arbitration and Conciliation Act, 1996.

The Supreme Court has appellate jurisdiction over all the courts and tribunals in India. The Appellate Jurisdiction of the court gives the power to hear the matter under Article 132[2], 133[3] and 134[4] in respect to judgement, order or final decree given by the High Court in the cases of civil and criminal matter. It also grants Special Leave Petition under Article 136[5] to hear the matter from any judgement, decree, sentence or passed by any Court or Tribunal in India.

Under Article 143[6] the Supreme Court if India has got the Advisory Jurisdiction under which it may advise the President of India on the matters which are related to the public importance. The Supreme Court is not bound to give the advice, but it may hear the matter then act accordingly.

It has played an important role in the development by the jurisdiction as it was done by delivering the judgment. The importance of this that it established a channel of the relationship between the Judiciary and Executive.

Chapter I: What is the role played by the Judiciary in giving the Advisory Jurisdiction?

The idea of Advisory Jurisdiction was initially brought under Section 213[7] of Government of India Act, 1935. The section gave the power to the Federal Court to advise the Executive on the question of law. The number of cases reported that time was very low, but the opinion given by the Federal Court gave a foundation that subsequently was vested in The Supreme Court of India by the Constitution.

An ad hoc committee was appointed by the Constituent Assembly and the same committee in its report stated that the Advisory Jurisdiction should be included in the Constitution of India.[8] After the Constitution of India came into force the Supreme Court has made a significant contribution by giving opinions on several matters.

The President made a reference under Article 143(1)[9] to the Supreme Court by the decision given by the court itself in the case of Advocate-on-Record Association v. Union of India[10]. The court cannot take up the appeal on the matter which has been decided by them before, but it can rather clear the ratio which was decided in the earlier judgement[11].

The President has a duty to look into the matter before referring it to the Supreme Court. He should be satisfied with the question of law established in the case and such a question of law should be of great public importance and requires an opinion from the court.[12]

The Supreme Court of India not by its judgment directly but through the contribution made by the advisory jurisdiction has played an important role in the development of the nation by giving its review and advise on certain important matters.

In the issue of Cauvery Dispute Tribunal[13], the issue was whether the water of river Cauvery should be flow from state of Karnataka to State of Tamil Nadu. A Tribunal was appointed by the Central Government which gave a decision to flow certain quantity of water in the State of Tamil Nadu. The government of Karnataka promulgated on ordinance regarding not honour the order of the Tribunal.

The President of India made a reference to the Supreme Court of India under Article 143[14]. The Supreme Court gave opinion that the Ordinance passed by Karnataka Government is unconstitutional as the decision given by the Tribunal is protected under Article 262[15] of the Constitution of India.

The Supreme Court in the matter laid down the advisory jurisdiction is distinct from the adjudicatory jurisdiction, and that it cannot be converted to appellate jurisdiction or review jurisdiction of Supreme Court.

Also, in the case of Keshav Singh v. Speaker of Legislative Assembly[16], there was a complete deadlocked between the State legislature of the Uttar Pradesh and Allahabad High Court. Keshav Singh was arrested against the charge of contempt of the Uttar Pradesh State Assembly. In a petition filed before the Allahabad High Court, Keshav Singh was granted the bail by the division bench. The assembly issued the summon against the judges and advocate who filed. A petition was filed by the judges in the High Court restraining the legislative assembly from issuing warrant against judges.

The legislative assembly did not invoke the appellate the jurisdiction of the Supreme Court because it was assumed by the legislative assembly that the court has got nothing to do with the power of the assembly.

The matter was referred by the President to the Supreme Court where it laid down judge who entertains a petition challenging any order of the legislature imposing any penalty on the petitioner for its contempt does not commit contempt of the said legislature and the legislature is not competent to initiate proceedings against that judge.

From the above two instances, it is stated that The Supreme Court has played an indirect role to resolve the disputed between the Centre and State as well as State and High Court, which lays the position and role of the Judiciary and the contribution made to the disputed which are not directly brought before the court.

Chapter II: Whether the Supreme Court is bound to give opinion?

The consideration regarding whether the Supreme Court is bound to give advice or not was brought by Shri H.V Kamnath in the debate of the Constituent Assembly when Article 143 was in the form Article 119 of the Draft Constitution.[17]

As per Article 143[18] of the Indian Constitution:

Power of President to consult Supreme Court ( 1 ) If at any time 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 the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

As per Clause (1), the Supreme Court has the power to look into the matter and decide whether to give the opinion on the same or not. the use of the word may in clause (1) gives the power to the Supreme Court to refuse to give an opinion on the matter.

The President is also not bound to accept the advice given by the Supreme Court. It depends on the President whether he has to agree with the opinion or not. But usually, the Presidents honours the same and appreciates it. The Supreme Court may take an undertaking from the Attorney General which has to be honoured by the President.

A bill on Special Court was introduced in the Parliament after the emergency (1975-77). For the same, the President made the reference of the same regarding the constitutional validity of the bill. There were questions regarding the maintainability of the bill in the court.

Some of the contentions were:
  1. Firstly, that it is pending before the Parliament.
  2. Secondly, bill was hypothetical and speculative because it is yet to become an Act.
  3. Thirdly, the sovereignty of the Parliament was affected.
  4. Fourthly, that the bill involves a political question.

It was held that:
it is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. The President may make a reference at an anterior stage[19]. The Supreme agreed upon the same and suggested some modifications which were duly incorporated in the bill.

Neither the Supreme Court nor the President is binding on the same. It is an opinion which is given, not law so under Article 141[20] is not binding on the lower courts. But usually, the lower court refers the advisory opinion as authoritative to give their judgment in the normal cases coming to them. Under the Advisory Jurisdiction, the court doesn’t make laws but apply the law which is applicable in the case so resolve the disputes among the parties.

In the case of Kerala Education Bill[21], it was laid down, the Court is not bound to give advice under Article 143(1)[22], but it has to give an opinion when the same is brought under 143(2)[23].

It is often criticised the opinion of the court which was given in the case of Keshav Singh[24], which very much ruled in the favour the Allahabad High Court but still it was accepted and respected by the President as well as the Legislative assembly of Uttar Pradesh.

M. Ismail Faruqui v. Union of India[25], the matter on Babri Masjid was referred to the Supreme Court by the President and the court declined to give an opinion on the grounds that the question was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered.

As per Article 145(3)[26], the reference needs to be heard by not less than 5 judges bench. A report is to be made by the court in accordance to the opinion delivered in open court.[27] A judge who is not satisfied has the right to give a dissenting opinion under article 145(5)[28]. [29]

Article 142(2)[30] deals with the cases where the President may refer the dispute to the Supreme Court in spite of the prohibition prescribed by the proviso to Article 131[31]. Till now no matter has been referred to the Supreme Court under Article 142(2)[32] of the Constitution. If the same is referred, then the Supreme Court is obliged to exercise advisory opinion on the same.

Thus, it can be inferred that the Supreme Court is not obliged to give its opinion whenever the matter is brought to it under Article 143(1)[33] of the Constitution. The court if so willing to reject the same must state the reasonable grounds for the rejection. The court generally doesn’t give an opinion which is regarding some political and socio-economic approach. If the matter is regarding the constitutional concern or approach, the Supreme Court has given the advisory opinion and played an important in role in issues which were brought to it under the Advisory Jurisdiction. The Supreme Court assists in the governance of the country by giving advice to the executive and legislature to act in accordance with the constitution.[34]

Conclusion
There has been a lot of questions regarding the scope and validity of Article 143 of the Indian Constitution. Although there have been very fewer cases referred under this article still this holds an importance in the Constitution. The President can make the reference to Supreme Court if all the other conditions are satisfied and if the Supreme Court deems fit then it can exercise and gives it an opinion. There have been cases where the Supreme Court has also rejected whenever the matter was referred.

The advisory jurisdiction of the Supreme Court may have some cons, but the jurisdiction should be continued as a provision in the Article as in the past various issues of great significance are resolved under this article. It develops a relationship between the Judiciary and the Executive. The matter which is not brought to the court gets guidance of the Supreme Court in a way. These advisory opinions have strengthened the status of the judiciary.

To conclude, the advisory opinion has played a significant role in deciding the important issue by the court and it has created a channel between the Executive and Judiciary. It has also helped in the development of Constitutionalism in India.

End-Notes:
  1. Art. 32, the Constitution of India.
  2. Art. 132, the Constitution of India.
  3. Art. 133, the Constitution of India.
  4. Art. 134, the Constitution of India.
  5. Art. 136, the Constitution of India.
  6. Art. 143, the Constitution of India.
  7. S. 215, Government of India Act, 1935.
  8. Ad Hoc Committee, Constituent Assembly, Report of the Ad Hoc Committee on the Supreme Court on the Supreme Court, 1947.
  9. Art. 143(1), The Constitution of India.
  10. Advocate-on-Record Association v. Union of India, AIR 1994 SC 868.
  11. In Re: Presidential Reference, AIR 1999 SC 1.
  12. Natural Resources Allocation, re, Special Reference No. 1 of 2012, (2012)10 SCC 1.
  13. Cauvery Dispute Tribunal v. Unknown, AIR 1992 SC 522.
  14. Supra 6.
  15. Art. 262, the Constitution of India.
  16. Keshav Singh v. Speaker of Legislative Assembly, AIR 1965 All 349.
  17. Constituent Assembly Debates.
  18. Supra 6.
  19. The Special Court Bill v. Unknown, AIR 1979 SC 478.
  20. Art. 141, the Constitution of India.
  21. The Kerala Education Bill v. Unknown, 1959 1 SCR 995.
  22. Supra 9.
  23. Art. 143(2), the Constitution of India.
  24. Supra 16.
  25. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605.
  26. Art. 145(3), the Constitution of India.
  27. Art. 145(4), the Constitution of India.
  28. Art. 145(5), the Constitution of India.
  29. Akshada Dhagamwar & Supriya Dash, THE ADVISORY JURISDICTION OF THE SUPREME COURT
    OF INDIA: A STUDY,5, International Journal of Law and Legal Jurisprudence Studies 158, 161, available at http://ijlljs.in/wp-content/uploads/2018/10/Advisory-Jurisdiction.pdf, last seen on 29/09/2019.
  30. Art. 142 (2), the Constitution on India.
  31. Art. 131, the Constitution of India
  32. Supra 30.
  33. Supra 9.
  34. Dr. Dharmendra Kumar Singh & Dr. Amit Singh, Consultative Jurisdiction of Supreme Court of India: Assessment and Critical Analysis, 22, IOSR Journal Of Humanities And Social Science 43, 46, available at http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue6/Version-13/H2206134348.pdf, last seen on 29/09/2019.

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