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Advisory jurisdiction of the Supreme Court-Is the court bound to give its opinion

Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. The Jurisdiction of the Supreme Court of India can broadly be categorized into three parts:
1. Original Jurisdiction
2. Appellate Jurisdiction
3. Advisory Jurisdiction
Article 143 of the Constitution of India confers upon the Supreme Court advisory jurisdiction.

Article 143 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.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the [said proviso] to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

The Advisory jurisdiction of the Supreme Court in Constitution of India is sourced from the Government of India Act, 1935 wherein the provision of Section 213(1) of the Government of India Act, 1935 conferred an advisory function upon the Federal Court. First Draft Constitution, the Constitutional makers reproduced the provision of the 1935 Act after substituting “President’ for ‘Governor-General’ and ‘Supreme Court’ for ‘Federal Court’. Moreover, by virtue of amendment, the word ‘decision’ was substituted by 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’ was substituted and finally,renumbered as Article 143 of the Constitution.

Firstly, the President may obtain the opinion of the Supreme Court on any question of law or fact that has arisen or likely to arise.
Secondly, said question of law or fact is of such nature or of such public importance that it is expedient to obtain the opinion of Supreme Court.
Thirdly, the Supreme Court, on receiving such reference may, after such hearing as it thinks fit, report its opinion to the President.

Essential aspects of Advisory Jurisdiction of the Supreme Court-

1. Article 143 does not speak of administration of justice or any adjudication. It is not adjudication but consultation, an advisory function designed to assist the President (the Executive).
1. Accordingly, there is to be no judgement, decree or order but opinion to be forwarded to the President in a report.
2. Its scope is, however, wider, as it provides that any question of law or fact of public importance may be referred by the President for the consideration of the Supreme Court
3. The opinion of the Supreme Court is only advisory and not binding. The President is free to follow or not to follow. (Keshav Singh’s Case, AIR 1965 SC 745). However, even if the opinion given in the exercise of advisory jurisdiction may not be binding, it carries weight and has great persuasive value.

4. It was also held by the Supreme Court that the references made under this Article are not the “law declared by the Supreme Court” under Article 141 of the Constitution. So it is not binding on inferior courts, even though have high persuasive value.

5. A private member, Mr. Ram Jethmalani, introduced in the House of the People (Lok Sabha) a Bill for the setting up of Special Courts to expedite the trial of cases of grave abuse of power during emergency. On 1 August, 1978 the President acting under Article 143, referred the following questions for the opinion of the Supreme Court in re The Special Courts Bill1978 (the special courts reference).

a. Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally invalid.
b. 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. accepted that the Supreme Court opinion under 143(1) was not law within the meaning of Article 141, but he, however, was compelled to observe as under-
“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.”

6. The Supreme Court, however, itself remain free to re-examine and if necessary to overrule the view taken in an opinion under Article 143(1).

7. It was held in Cauvery Water Disputes Tribunal1992, 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.

8. The first reference under Article 143 was made in theDelhi Laws case, (1951) SCR 747. So far around twelve references have been made under Article 143 of the Constitution by the President for the opinion of the Supreme Court:

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.

To conclude, the advisory jurisdiction of the Supreme Court in Article 143 empowers the President to make references to Supreme Court on any matters but it cannot be said as the Jurisdiction of Supreme Court. The views taken by the Court is not binding on the President and it is not law within Article 141. It is on court to examine whether it should be answered or not, if not then with valid reasons.

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