DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

ACADEMIC SESSION: 2016-17

CONSTITUTIONAL LAW II: FINAL DRAFT
Advisory Jurisdiction of Supreme Court

Submitted To: Submitted By:

Dr. A. K.Tiwari Vikesh Kumar

HOD (Legal Studies) B.A. L.L.B. (Hons.)

Dr. RMLNLU, Lucknow Roll No: 157

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Contents
ACKNOWLEDGEMENT................................................................................................. 3
INTRODUCTION........................................................................................................... 4
BACKGROUND............................................................................................................ 5
ADVISORY JURISDICTION............................................................................................. 6
JUDICIAL INTERPRETATION.......................................................................................... 7
REFERENCES MADE TO SUPREME COURT...................................................................9
CONCLUSION............................................................................................................ 10
BIBLIOGRAPHY.......................................................................................................... 11

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ACKNOWLEDGEMENT

Every work accomplished is a pleasure a sense of satisfaction. However a number of people

motivate, criticize, appreciate a work with their objective ideas and opinions, hence I would like
to use this opportunity to thank all, who have directly or indirectly helped me to accomplish this
project. Firstly I would like to thank Dr. A. K. Tiwari without whose support this project would
remain unaccomplished. Next I would like to thank all those people, who gave their valuable
time and feedback to this project. I would also like to thank our college which provided
resources, which beyond any doubt have helped me.

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INTRODUCTION

Supreme Court of India is the highest court established by Part V, Chapter IV of the Indian
Constitution. The Supreme Court of India came into force on 28 January 1950 replacing both the
Federal Court of India and the Judicial Committee of the Privy Council which were at the apex
of the Indian court system. It is the highest appellate court which takes up appeals against the
verdicts of the High Courts and other courts of the states and territories. As originally enacted,
the Constitution of India provided for a Supreme Court with a Chief Justice and seven lower-
ranking judges leaving it to Indian Parliament to increase this number. Parliament increased the
number of judges from the original eight in 1950 to eleven in 1956, fourteen in 1960, eighteen in
1978, twenty-six in 1986 and thirty one in 2008.

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
categorised into three parts:

1. Appellate Jurisdiction

2. Original Jurisdiction

3. Advisory Jurisdiction

The Projects explores all the aspects of Advisory Jurisdiction of Supreme Court is widely
discussed. The Supreme Court has special advisory jurisdiction in matters which may
specifically be referred to it by the President of India under Article 143 of the Constitution.

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BACKGROUND

The Advisory jurisdiction of the Supreme Court in 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.
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, 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 Advisors 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.

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ADVISORY JURISDICTION

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. 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) SCR 747. In almost sixty years, only twelve references have been
made under Article 143 of the Constitution by the President for the opinion of the Supreme
Court:

1. In re the Delhi Law Act1

2. In re the Kerala Education Bill2

3. In re New India Motors Ltd. v. Morris3

4. In re Berubari (Indo-Pakistan Agreements)4

5. In re the Sea Customs Act5

6. In re Keshav Sings Case6

1 AIR 1951 SC 332

2 AIR 1958 SC 956

3 AIR 1960 SC 875

4 AIR 1960 SC 845

5 AIR 1963 SC 1760

6 AIR 1965 SC 745

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 7. In re Presidential Poll7

8. In re Special Courts Bill8

9. Re in the matter of Cauvery Water Dispute Tribunal9

10. Re in the matter of Ram Janamabhoomi10

11. e on Principles and Procedure regarding appointment of Supreme Court and High Court
Judges11

12. Gujarat Assembly Election Matter12

In August 2002, the then President Dr. Abdul Kalam sought advice of the Supreme Court under
Article 143 in connection with the controversy between the Election Commission and the
Government on elections in Gujarat. The issues related to the limits on the powers of the Election
Commission under Article 324, the impact of Article 174 on the jurisdiction and powers of the
Commission and whether the Commission could recommend promulgation of Presidents rule in
a state. 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 India13 that in that case, reasons must be indicated.

7 AIR 1974 SC 1682

8 AIR 1979 SC 478

9 AIR 1992 SC 522

10 (1993) 1 SCC 642

11 AIR 1999 SC 1

12 AIR 2003 SC 87

13 AIR 1995 SC 605

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JUDICIAL INTERPRETATION

Article 143 is not part of administration of justice. It is part of advisory machinery designed to
assist the President (the Executive). 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.

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 Supreme Court has 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. The Presidents reference under Article 143(1) to
the Supreme Court in In re The Special Courts Bill1978 (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 are dilatory and Mrs. Gandhis
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,
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1978 the President acting under Article 143, referred the following questions for the opinion of
the Supreme Court.

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

2. (2) The nature of the Supreme Courts 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
judgement, 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 inCauvery Water
Disputes Tribunal 1992, 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.

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REFERENCES MADE TO SUPREME COURT

In the matter of Cauvery Dispute Tribunal14, 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 honour 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 judgement in Ismail Faruqui v. Union of India15,
the five judge bench of the Supreme Court held that the Presidential reference seeking the
Supreme Courts 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. In Delhi
Laws Act case, the Court considered the validity of the Act with regard to delegated legislation.
In Re Kerala Education Bill, 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),
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), to consider the validity of the Sea
Customs Bill with reference to Article 288 of the Constitution. The Special Court reference
case (1978), also known as Keshav Singhs 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

14 AIR 1992 SC 522

15 (1994) 6 SCC 360

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sought. In all these cases the Supreme Court came with various interpretations of Article 143 of
the Constitution.

CONCLUSION

From all these cases interpreted by the Apex Court, we came to conclusion that 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. Article 143 of the Constitution confers Advisory
Jurisdiction to the Supreme Court of India. This provision finds its origin in Section 213 of the
Government of India Act, 1935, which conferred upon the Governor General the discretion to
pose questions of public importance to the Federal Court. Similarly, as per Article 143 the
President has the power to address questions to the Supreme Court, which he deems important
for public welfare. The Supreme Court advises the President by answering the query put before
it. Till date this mechanism has been put to use only twelve times. However, it is pertinent to note
that this is not binding on the President, nor is it law declared by the Supreme Court, hence not
binding on subordinate courts. Now it is on court to examine whether it should be answered or
not, if not with valid reasons. However, the views taken by the Court is not binding on the
President. Till now, the twelve references have been made by the President; some of them have
been discussed through this paper. 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.

BIBLIOGRAPHY

1. M. SEERVAI, Constitutional Law of India, Volume 2, (Universal Law Publishing Co.

4thEdition, 2008)

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2. M. SEERVAI, Constitutional Law of India, Volume 3, (Universal Law Publishing Co.
4thEdition, 2008)

3. DURGA DAS BASU, Commentary on the Constitution of India, Volume 5, (LexisNexis

ButterworthsWadhwa, 8th Edition, 2009)

4. SUBHASH C. KASHYAP, Constitutional Law of India, Volume 1, (Universal Law

Publishing Co. 2008 Edition)

5. J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition,
2011)

6. MAHENDRA P. SINGH, N. Shuklas Constitution of India, (Eastern Book Company,

11thEdition, 2010)

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