Vol.

21(1) National Law School of India Review 2009

overruled. The correct position, for the reasons discussed above, is that which
was taken by Untwalia J. for the majority in Ranganatha Reddy – that of testing the
validity of acquisition laws against the touchstone of Articles 14 and 19. The PRESIDENTIAL REFERENCES AND THEIR PRECEDENTIAL
interrelationship between the Fundamental Rights and the Directive Principles VALUE: A CONSTITUTIONAL ANALYSIS
is a complex one. A law purportedly in the common good may be presumed to be a
valid restriction/classification. If, however, this presumption can be defeated Deepaloke Chatterjee*
(perhaps because of excessive discrimination), then it cannot be said to actually be This article discusses the precedential value of presidential references to the
in the common good. In other words, a law, the fruits of which are to be used for Supreme Court. The author analyses the history of presidential references in
the common good, for fulfilling the purposes of Article 39(b) (for example, taxation India, jurisprudence of the Supreme Court on this point, the practice in other
or acquisition laws) may be strongly presumed to be creating a valid classification/ jurisdictions and important constitutional law concepts which influence the
restriction. If, however, this presumption (perhaps stronger than the usual binding nature of these references, such as the doctrine of stare decisis and the
presumption of constitutionality, as is common in fiscal and economic statutes) system of constitutional democracy prevalent in India. He then examines the
is rebutted, the law is not really in furtherance of the common good (even though arguments for and against treating presidential references as precedent and finally
concludes by stating that while the advisory jurisdiction of the Supreme Court
its fruits are to be used for the common good).
is significant, it is not to be considered as binding law.
To conclude, it may be stated that what is protected under Article 39(b),
read with Article 31C, is the allocation of the fruits, i.e. the resources already vested I. INTRODUCTION ............................................................................................. 175
in the State. In gathering those fruits, the State must respect all Fundamental Rights II. THE CONFLICT WITHIN ................................................................................ 176
(and in this it will be aided by the presumption of constitutionality) including III. THE PRACTICE OF THE SUPREME COURT ................................................ 178
those enshrined in Articles 14 and 19. IV. A QUESTION OF INTERPRETATION ............................................................ 181
V. IN CONCLUSION ............................................................................................ 185
With respect, therefore, it is submitted that the recent approach of the
judiciary, calling in question the interpretation placed in Sanjeev Coke, is far from
I. INTRODUCTION
reproachable and deserves to be commended. It is submitted, with respect, that
the decision in Sanjeev Coke be reconsidered in this light. Articles 141 and 143(1)2 of the Constitution of India provide for the doctrine
1

of precedent and for the presidential power to refer cases to the Supreme Court,
respectively.3 The interface between the advisory opinions, provided for by Article
143(1) of the Constitution of India, and the doctrine of stare decisis, has always been
a problematic area of Indian constitutional jurisprudence. While the significance
of Article 141 is beyond doubt, its importance with respect to reference cases

* 4th Year student at the West Bengal National University of Juridical Sciences, Kolkata.
The author would like to acknowledge the encouragement and assistance that he
has received from Mr. Shiju M. V., Ms. Vaneesha Jain and Mr. Arunaloke Chatterjee.
1
Article 141 of the Constitution of India states as follows: “The law declared by the
Supreme Court shall be binding on all courts within the territory of India.”
2
Article 143(1) of the Constitution of India states as follows: “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.”
3
Order XXXVII of the Supreme Court Rules provides the procedure for the
consideration of a Special Reference under Article 143 by the Supreme Court.

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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

cannot always be said to be so.4 However, these apparently conflicting concepts are It is important to remember that, in cases of conflict between opinions
both fundamental to the proper governance of a polity. This necessitates a definite pronounced by the Supreme Court, the opinion expressed by the larger bench
demarcation of these two concepts, while giving due regard to each of them. prevails.6 As noted by the court,
It is commonly known that most decisions of the courts are of significance
The present paper investigates the parameters of the advisory opinions not merely because they constitute an adjudication on the rights of the
provided for by Article 143(1) vis-à-vis the binding nature of Supreme Court parties and resolve the dispute between them, but also because, in doing
judgments as set out by Article 141 of the Constitution of India. While Part II so, they embody a declaration of law operating as a binding principle in
mentions the significance of, and examines the debate surrounding, the application future cases.7
of Article 141, Part III consists of an analysis of the manner in which presidential
references are made, and the method followed by the Supreme Court in pronouncing Therefore, a decision by a constitution bench of the Supreme Court can, in
on such references. In Part IV, the numerous views which courts have taken on the no circumstance, be whittled down by a diametrically contrary interpretation
interplay between Articles 141 and 143(1) is explored. The author will consider the provided by a division bench of the same court, thus ensuring consistency and
practice adopted by the Supreme Court in dealing with these decisions in later stability in the law.8
cases, and determine whether advisory opinions are, indeed, used as a means (or
even as a subsidiary means) for the determination of the applicable law. The efforts towards consistency, made by the judiciary, are reflected in the
approach taken with regards to Article 141:
During the course of this paper, the author will rely upon the work of
certain highly qualified Indian jurists, while also taking into consideration the
Consistency is the cornerstone of the administration of justice. It is with
teachings of publicists from various other nations. No reliance will be placed on
a view to achieve consistency in judicial pronouncements that the courts
the views expressed by the Supreme Court in advisory opinions, about advisory
opinions, as this would make the entire process circular. Finally, in Part V, an have evolved the rule of precedents, principle or stare decisis”9 and “…to
analysis of the provisions of certain foreign constitutions will be undertaken. The determine whether a decision has ‘declared law’ it cannot be said to be a
effect of the correlation between Articles 141 and 143(1) will be commented upon law when a point is disposed of on concession and what is binding is the
in an effort to answer the crucial question of whether advisory opinions are also, principle underlying a decision….The law which will be binding under
in themselves, binding on lower courts. Article 141 would, therefore, extend to all observations of points raised
and decided by the court in a given case.10
II. THE CONFLICT WITHIN However, as has been reiterated by the judiciary, the doctrine of precedent
should not be considered as one which is rigid, applied even at the cost of justice.11
The Constitution of India has enumerated several fundamental rights, and
This has moved the court to also state that,
is based on the conception of justice, equality and liberty. These three concepts
have a civilizing tendency, if followed in their spirit, and necessitate the exercise of
It is true that the Constitution does not place any restriction on our powers
restraint, as opposed to providing unbridled power to any particular organ. The
to review our earlier decisions, or even to depart from them, and there
delicate texture of our constitution is based on the concept of each organ checking
can be no doubt that in matters relating to constitutional points which
the others, so that the dignity and freedom of the individual can always be ensured
have a significant impact on the fundamental rights of citizens, we would
- adequately demonstrating that the dignity of the individual forms the cornerstone
of our constitution. In a constitutional democracy like India’s, the organs of the 6
N. K. Jayakumar, Courts, in 10 HALSBURY’S LAWS OF INDIA 339 (Venkatachaliah et al. eds.,
government - the legislature, the executive and the judiciary are all bound by the 2001).
constitution which Bhagwati J. describes as “the suprema lex, the paramount, law of the 7
Union of India v. Raghubir Singh, A. I. R. 1989 S. C. 1933 [S. C.] at § 8.
land, and there is no department or branch of government above or beyond it”.5 8
MAHABIR PRASHAD JAIN, INDIAN CONSTITUTIONAL LAW 324-328 (Wadhwa & Co. 2003)
9
4
RAMANATHA AIYAR, ADVANCED LAW LEXICON 4456 (Chandrachud et al. eds., 2004) (stating State of Andhra Pradesh v. A. P. Jaiswal, A. I. R. 2001 S. C. 499 [S. C.] at § 22.
10
that the doctrine of precedent emanates from the legal maxim stare decisis et non Director of Settlements, Andhra Pradesh v. M. R. Apparao, A. I. R. 2002 S. C. 1598
quieta movere which literally means to stand by decisions and not to disturb what is settled). [S. C.] at § 8.
11
5
Minerva Mills v. Union of India, (1980) 3 S. C. C. 625 [S. C.] at § 104. Minerva Mills v. Union of India, (1980) 3 S. C. C. 625 [S. C.] at § 96.
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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

be prepared to review our earlier decisions in the interest of public good. on the Federal Court of India by Section 213 of the Government of India Act,
The doctrine of stare decisis may not strictly apply in this context and no 1935.17 The only conditions are – the President should be satisfied that a question
one can dispute the position that the said doctrine should not be permitted of law or fact has arisen, or is likely to arise, and that such question is of such
to perpetuate erroneous decisions pronounced by this court to the nature and of such public importance that it is expedient to obtain the opinion of
detriment of general welfare.12 the court on it.
On the other hand, England has an unwritten constitution and a system of
However, the Supreme Court has to always confine itself to the questions
parliamentary supremacy, which Dicey defines as being a system “[I]n which no
referred to it by the President. It cannot travel beyond the reference. The fact that
person or body is recognised by the laws of the U.K. as having the right to over-ride or set aside
the President has referred only some questions regarding the validity of a Bill or
the legislation of the Parliament”.13 However, the Constitution of India does not
an Act, and not others which also appear to arise, is no good reason for declining
envisage absolute powers being vested in the legislature, the executive or even
to entertain the reference,
the judiciary:
This court is bound by the recitals in the order of reference. Under Article
The doctrine of legislative supremacy distinguishes the UK from
143(1) we accept the statements of facts set out in the reference. The truth
those countries which have a written constitution, like India,
which imposes limits upon the legislature and entrusts the or otherwise of the facts cannot be enquired or gone into, nor can the
ordinary courts or a constitutional court with the function of court go into the question of the bona fides or otherwise of the authority
deciding whether the acts of the legislature are in accordance making the reference. This court cannot go behind the recital. This court
with the constitution.14 cannot go into disputed questions of fact in its advisory jurisdiction under
Article 143(1).18
Therefore, it is indisputable that the sovereignty of these non-sovereign
The President may formulate, for the advisory opinion of the Supreme
organs which are supposed to ensure the proper functioning of India is limited
Court, questions relating to the validity of the provisions of existing laws with
strictly to, and by, what is contained in the Constitution of India. Thus, individuals
regard to the validity of provisions proposed to be included in the Bills which
who merely refer to English authorities, or even the features of constitutions of
would come before the legislature, or in respect of any other question of
other common law countries, to resolve the debate relating to advisory opinions
and their binding nature commit an error. Quite interestingly, a particular
reference made to the Supreme Court was not answered owing to the Immunities of State Legislature, Re, A. I. R. 1965 S. C. 745 [S. C.], Presidential Poll,
Re, (1974) 2 S. C. C. 33 [S. C.], The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380
“unconstitutional” question raised by it.15 [S. C.], The Matter of Cauvery Water Disputes Tribunal, Re, A. I. R. 1992 S. C. 522
[S. C.], Reference on the Principles and Procedure Regarding the Appointment of
Supreme and High Court Judges in 1998, A. I. R. 1999 S. C. 1 [S. C.], Gujarat Assembly
Election Case, (2002) 8 S. C. C. 237 [S. C.]. See also, JAIN, supra note 8, at 299.
III. THE PRACTICE OF THE SUPREME COURT 17
Government of India Act, 1935, §213 states - Power of Governor-General to consult
Federal Courts:
Article 143(1) confers upon the Supreme Court the power to give its opinion
(1) If at any time it appears to the Governor-General that a question of law has
on questions unconnected with a pending case.16 A similar power was conferred
arisen, or is likely to arise, which is of such a nature and of such public importance
12
that it is expedient to obtain the opinion of the Federal Court upon it, he may [in his
Sajjan Singh v. State of Rajasthan, A. I. R. 1965 S. C. 845 [S. C.] at § 22. discretion] refer the question to that court for consideration, and the court may,
13
THE ENGLISH LEGAL SYSTEM 15 (Gary Slapper et al. eds., 2004). after such hearing as they think fit, report to the Governor-General thereon.
14
Powers, Privileges and Immunities of State Legislatures, Re, A. I. R. 1965 S. C. 745 (2) No report shall be made under this section save in accordance with an opinion
[S. C.] at § 39. delivered in open court with the concurrence of a majority of the judges present at
15
In the matter of Ram Janmabhoomi, Re, (1993) 1 S. C. C. 642 [S. C.]. the hearing to the case, but nothing in this sub-section shall be deemed to prevent
16 a judge who does not concur from delivering a dis-senting opinion (omitted by the
The cases referred to the Supreme Court till date are - The Delhi Laws Act, Re,
India (Federal Court Judges) Act, 1942 5 & 6 Geo. 6, c.7, §1).
A. I. R. 1951 S. C. 332 [S. C.], Kerala Education Bill, 1957, Re, A. I. R. 1958 S. C. 956
18
[S. C.], Berubari Union and Exchange of Enclaves, Re, A. I. R. 1960 S. C. 875, [S. C.], Kerala Education Bill, 1957, Re, A. I. R. 1958 S. C. 956 [S. C.]. See also, Presidential
Sea Customs Act, 1871, Re, A. I. R. 1963 S. C. 1760 [S. C.], Powers, Privileges and Poll, Re, (1974) 2 S. C. C. 33 [S. C.] at § 38, per A. N. Ray, C. J.

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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

constitutional importance.19 A question of law which has already been decided and also not on grounds of expediency and propriety.31 Finally, the Supreme Court
by the Supreme Court in the exercise of its judicial powers cannot be referred to has also noted that the power to give an advisory opinion has been provided
the court under Article 143. The Supreme Court cannot sit in appeal against its only to it and not to the High Courts.32
earlier decisions in the exercise of its advisory jurisdiction under Article 143.20
The Supreme Court can, however, refuse to express its advisory opinion if it is
satisfied that the questions that have been formulated for its opinion are purely
IV. A QUESTION OF INTERPRETATION
socio-economic or political in nature and do not have any constitutional On the question of the binding nature of an advisory opinion, under Article
significance.21 143(1), the Supreme Court has always expressed the view that while it is always
Certain general issues relating to the scope and extent of Article 143(1) open to the Supreme Court to re-examine a question already decided by it and, if
were dealt with by the court in the reference of the Special Courts Bill.22 Chandrachud necessary, overrule it, these advisory opinions do not have the force of law.33 Even
J. even notes that an advisory opinion does not lay down the law and that it has no in the matter of Cauvery Water Disputes Tribunal, Re,34 a similar question arose which
greater effect than that of the opinion of law officers: “[t]he question of the value of the court refused to clarify.35
advisory opinions of the Supreme Court may have to be considered more fully on a future occasion.”23 In spite of what appeared to be a clear stand of the Supreme Court, that
The opinion of the Supreme Court in the Special Courts Bill reference relating opinions expressed in exercise of its jurisdiction under Article 143(1) are not
to advisory jurisdiction can be summarized as follows: first, the Supreme Court binding, there have also been cases such as Vasantlal Maganbhai Sanjanwala v. State
can decline to answer a reference under clause 1 of Article 143 owing to the use of of Bombay,36 where the question that had arisen was one relating to excessive
the word ‘may’. Secondly, speculative opinions on hypothetical questions need not delegation, and where the court relied upon the reference case of Delhi Laws Act37
be provided.24 Thirdly, the questions referred must be specific and not vague.25 to decide the matter. Another glaring example of reliance on a reference opinion
Fourthly, the Supreme Court, by answering the reference, does not encroach upon by the Supreme Court, which gave a binding decision based on a non-binding
the functions and privileges of Parliament.26 This is also in accordance with the reference opinion, is that of Bhagwati J. while delivering the majority opinion in
system of checks and balances which the executive, legislature and the judiciary the Bearer Bonds case.38
are expected to exercise upon each other, and which flows from having a In the Bearer Bonds case,39 Bhagwati J. stated that the latest and most
constitution which is federal in nature with unitary leanings.27 Fifthly, the Supreme comprehensive statement of certain legal propositions relating to Article 14 were
Court does not abrogate Article 32 by answering references.28 Sixthly, it should to be found in the judgment of the Special Courts Bill reference.40 Bhagwati J. stated
not do so on the ground of futility,29 or that it raises a purely political question,30 that he took the legal propositions laid down in the Special Courts Bill reference41

19
Powers, Privileges and Immunities of State Legislature, Re, A. I. R. 1965 S. C. 745 [S. C.]. 31
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.] at § 407. See also, V. N. SHUKLA,
20
The Matter of Cauvery Water Disputes Tribunal, Re, A. I. R. 1992 S. C. 522 [S. C.]. CONSTITUTION OF INDIA 463-65 (M. P. Singh ed., 1998).
32
21
M. Ismail Faruqui v. Union of India, A. I. R. 1995 S. C. 605 [S. C.] . See also, Kerala Chandra Shekhar v. State of Orissa, A. I. R. 1972 S. C. 486 [S. C.]. See also, H. M.
Education Bill, 1957, Re, A. I. R. 1958 S. C. 956 [S. C.] at § 964, Powers, Privileges and SEERVAI, CONSTITUTIONAL LAW OF INDIA I 1677 (4th edn., 2004).
Immunities of State Legislature, Re, A. I. R. 1965 S. C. 745 [S. C.] at § 747. 33
St. Xaviers College v. State of Gujarat, (1974) 1 S. C. C. 717 [S. C.], Powers, Privileges
22
The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.]. and Immunities of State Legislature, Re, A. I. R. 1965 S. C. 745 [S. C.] at § 762-63.
34
23
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.], per Chandrachud J. The Matter of Cauvery Water Disputes Tribunal, Re, A. I. R. 1992 S. C. 522 [S. C.].
35
24
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.] at § 401. B. R. AGARWALA, SUPREME COURT PRACTICE & PROCEDURE 207-08 (2002).
36
25
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.] at § 403. A. I. R. 1961 S. C. 4 [S. C.] (comprising a bench of B. P. Sinha, C. J., J. L. Kapur, K.
26
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.] at §§ 403-6. Subba Rao, K. N. Wanchoo and P. B. Gajendragadkar, JJ.).
37
27
S. R. Bommai v. Union of India, (1994) 3 S. C. C. 1 [S. C.]. The Delhi Laws Act, Re, A. I. R. 1951 S. C. 332 [S. C.].
38
28
Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.] at § 406-07. R. K. Garg v. Union of India, A. I. R. 1981 S. C. 2138 [S. C.].
39
29
Special Courts Bill, (1979) 1 S. C. C. 380 [S. C.] at § 408. R. K. Garg v. Union of India, A. I. R. 1981 S. C. 2138 [S. C.].
40
30
S. R. Bommai v. Union of India, (1994) 3 S. C. C. 1 [S. C.] at § 17-21, Special Courts Bill, The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.].
41
(1979) 1 S. C. C. 380 [S. C.] at § 406. The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.].

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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

opinion to be binding.42 However, Chandrachud J., while delivering his opinion Unfortunately, a unanimous interpretation to Article 143(1) with reference
in the Special Courts Bill reference43 had clearly stated that the propositions stated to Article 141 is yet to be provided. The Supreme Court even reviews its earlier
by the court in Special Courts Bill44 were not to be considered as binding on other decisions, if the decision has held the field for a considerably long time, only if it
Indian courts.45 is satisfied of its error or the baneful effect which a decision would have on the
general interest of the public or if it is inconsistent with the legal philosophy of
In 1992, the Supreme Court stated that “it has been held adjudicatively that the
our constitution.52
advisory opinion is entitled to due weight and respect - normally it will be followed. We feel
that the said view which holds the field today may usefully continue to do so till a more On the question of whether the opinions of the Supreme Court under
opportune time”.46 Such conflicting opinions have resulted in a great degree of advisory jurisdiction should be given equal weight as those decided otherwise,
confusion, and it is this confusion that the author will now seek to dispel. the author believes that although these opinions are entitled to a certain amount
of weight and respect, there is overwhelming authority to suggest the contrary –
The power to interpret and safeguard the Constitution of India lies with the opinions under advisory jurisdiction do not constitute law. In furtherance of this
Supreme Court,47 even in the face of issues or questions of major political importance position, the author provides the following reasons -
merely because a question has a political complexion, that by
First, as is evident from a literal interpretation of this Article, the law
itself is no ground for the court to refrain from performing its
which is to be considered binding must be the law declared, and need not
duty under the constitution if it raises an issue of constitutional
determination...merely because a question has a political colour, necessarily be the law decided. A decision is not considered to be binding because
the court cannot fold its hands in despair and declare judicial of its conclusion but because of its ratio and the principles laid down therein.53
hands off.48 This is known as the doctrine of stare decisis or the doctrine of precedent. The
author believes that it is the use of the word declared in the marginal note, as well
The Supreme Court has noted that a court of law must gather the spirit of as the main text of the constitution which is of considerable importance to the
the constitution from the language used, and what one may believe to be the present debate.
spirit of the constitution cannot prevail if not supplied by the language. Therefore,
it must be construed according to well established rules of interpretation.49 A At this juncture, the reader should note that marginal notes are not voted
mere reading of Article 141 of the Constitution of India indicates that the law upon and are not considered to be an actual part of the constitution.54 The term
declared by the Supreme Court is considered to be binding on all courts in the stare decisis means, to stand by that which is decided.55 This would have to be the
territory of India. This article provides for the law making role of the court and law decided amongst parties. In a reference case there are no parties – thus law in
the use of the words ensures that it is not a reference to the law found or made.50 that case is not decided, but is merely an opinion from the judicial wing of the
A substantial question of interpretation of a constitutional provision does not nation to the executive head of the country on certain matters which both consider
arise if the law on the subject has been finally and effectively decided by the important to the well being of the nation.
Supreme Court.51 Article 141 ensures that the decisions of the Supreme Court are binding
upon all courts,56 the State and its officers,57 but not itself. It may, however, overrule
42
R. K. Garg v. Union of India, A. I. R. 1981 S. C. 2138 [S. C.] at § 8.
52
43
The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.] at § 105. Shambhu Nath Sarkar v. State of West Bengal, A. I. R. 1973S. C. 1425 [S. C.].
53
44
The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.]. B. Shama Rao v. Union Territory of Pondicherry, A. I. R. 1967 S. C. 1480 [S. C.], M. K.
45
SEERVAI, supra note 32, at 454 - 456 (criticising the opinion of Bhagwati J.). Sabha v. A. Faizullabhai, A. I. R. 1976 S. C. 1455 [S. C.], Bachan Singh v. State of
46
Punjab, (1979) 3 S. C. C. 727 [S. C.].
The Matter of Cauvery Water Disputes Tribunal, Re, A. I. R. 1992 S. C. 522 [S. C.] at 528. 54
47
G. P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION 166-68 (2008).
P. Kannadasan v. State of T. N., (1996) 5 S. C. C. 670 [S. C.]. 55
48
BLACK’S LAW DICTIONARY 1414 (Bryan Garner ed., 1990); RAMANATHA AIYAR, supra note 4,
S. R. Bommai v. Union of India, (1994) 3 S. C. C. 1 [S. C.] at 661. at 4456.
49
K. M. Menon v. Bombay, A. I. R. 1951 S. C. 128 [S. C.]. 56
B. M. Lakhami v. Muncipal Committee, (1970) 2 S. C. C. 267 [S. C.], M. S. I. Hussain
50
SHUKLA, supra note 31, at 460-62. v. State of Maharashtra, A. I. R. 1976 S. C. 1992 [S. C.], A. S. Gauraya v. S. N. Thakur,
51
State of Jammu & Kashmir v. Ganga Singh, A. I. R. 1960 S. C. 356 [S. C.], Bhagwan A. I. R. 1986 S. C. 1440 [S. C.].
Swarup v. State of Maharashtra, A. I. R. 1965 S. C. 682 [S. C.]. 57
T. K. N. Rajgopal v. T. M. Karunanidhi, (1972) 4 S. C. C. 267 [S. C.].

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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

these decisions either expressly or impliedly, by not following them in another This debate however provides a third ground, and further buttresses the
case.58 Even the directions issued by the Supreme Court in a decision constitute argument for not considering advisory opinions as binding. The author wishes
binding law under Article 141,59 but not the advisory opinions, as can be seen to highlight for the reader the fact that the Supreme Court has the power to refuse
from numerous authorities and a plethora of landmark cases – to answer the questions put before it, thus quite easily distinguishes proceedings
on a President’s reference from adjudication before a court of law. No court having
any discussion, even of reference cases, would have to be understood as
jurisdiction can refuse to decide a matter in controversy between the parties if it
being held purely in the context of those cases and limited to the legal
is brought before the court in an appropriate proceeding.63
questions that resulted from the facts of that particular case, even if those
were arguments that were looked upon favourably by the court in that
Fourthly, in a reference placed before it, the Supreme Court must always
reference case.60
assume that the facts stated before it are correct, even though the facts may be
Secondly, while in certain cases, pronouncements of the Supreme Court untrue, which once again differentiates it from any ordinary proceeding before
under its advisory jurisdiction have been followed by the lower courts,61 the court where quite often, the dispute as to the determination of the correct facts
these have almost always been opinions where the Supreme Court has merely constitutes the most important question. In addition, such an opinion of the Supreme
restated the proposition of law, and not really “made” the law in the relevant Court is merely in the nature of advice, and not binding upon the President.
sense of the term.

An authoritative pronouncement on the binding value of advisory opinions V. IN CONCLUSION

as precedent may still come.62 In this period, it can, however, be argued by those
The advisory jurisdiction of the Supreme Court appears to be analogous to
favouring the use of opinions in the exercise of advisory jurisdiction as binding,
that possessed by the Privy Council under Section 4 of the Judicial Committee,
that, as a matter of law and practice these opinions are given after similar
1833, with two minor distinctions.64 Similarly, Section 60 of the Canadian Supreme
proceedings as in other matters before the court and are expressed in the same
Court Act, empowers the Governor General-in-Council to refer important questions
manner, including the dissents, as any other judgement of the court. Therefore,
of law, touching certain matters, to the Supreme Court for hearing and consideration.
except for the absence of contesting parties, no good reason exists for not treating
The Supreme Court is bound to entertain and answer the reference, and the opinion
them like any other judgement of the court.
of the court upon such a reference is subject to appeal to Her Majesty-in-Council.
58
Dwarka Das Shrinivas v. Sholapur Spinning and Weaving Company Ltd., A. I. R. The Supreme Court of the Canadian Provinces, and several State Supreme
1954 S. C. 119 [S. C.], Bengal Immunity Co. v. State of Bihar, A. I. R. 1956 S. C. 631 [S. Courts in the United States, have been invested with similar powers of advisory
C.], State of West Bengal v. Corporation of Calcutta, A. I. R. 1967 S. C. 997 [S. C.].
59
jurisdiction.65 However, the Supreme Court of the United States has consistently
Khedat Mazdoor Chetna Sangath v. State of Madhya Pradesh, A. I. R. 1995 S. C. 31
[S. C.], Visakha v. State of Rajasthan, A. I. R. 1997 S. C. 3011 [S. C.] at § 12 (Holding
refused to pronounce advisory opinions upon questions of law on the ground
that the guidelines and norms laid down would be strictly observed in all work that it would be incompatible with the position it occupies in the hierarchy of the
places for the preservation and enforcement of the right to gender equality of United States of America.66
working women; that these directions would be binding and enforceable in law
until suitable legislation is enacted to occupy the field and that a writ of mandamus 63
H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA III 2688 (4th edn., 2004) (stating that although
in such a situation, if it is to be effective, needs to be accompanied by directions for
a Court may decline to decide disputed questions of fact in a writ petition on
prevention, as the violation of fundamental rights of this kind is a recurring
certain grounds, it cannot refuse to decide these questions).
phenomenon). 64
60
First, dissenting opinions are not delivered in the Privy Council. Second, it is made
S. P. Gupta v. Union of India, A. I. R. 1982 S. C. 149 [S. C.] at 758-759 (subsequently obligatory for the Judicial Committee to hear and consider the matter and advise
overruled but not on the point of presidential reference). Her Majesty thereon.
61
See, Ram Kishore Sen v. Union of India, A. I. R. 1965 Cal. 282 [Calcutta High Court], 65
See, http://www.uscourts.gov/outreach/resources/judicialindependence/worldview.html.
Chhabildas Mehta v. Legislative Assembly, State of Gujarat, (1970) 2 Guj. L. R. 729 Also see, www. sisis.nativeweb.org/clark/snake.html.
[Gujarat High Court]. 66
62
Muskrat v. U. S., 56 L. Ed 246, 252 (1911). (However, numerous constitutions such as
The Special Courts Bill, 1978, Re, (1979) 1 S. C. C. 380 [S. C.]. See also, The Matter of the Australian Commonwealth Act and the Republic of South Africa Constitution
Cauvery Water Disputes Tribunal, Re, A. I. R. 1992 S. C. 522 [S. C.]. do not have any provisions that are analogous to the power under Article 143).

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Vol. 21(1) National Law School of India Review 2009 Presidential References and their Precedential Value

It has been argued by scholars67 that the Australian constitution has no for the reference of matters, some disputes would never have been resolved, owing
provision parallel to Article 143(1) of the Constitution of India. However, to some to the deadlock between the legislature and the High Court.70 Although these
extent, a similar purpose is served by permitting the Attorney General to bring opinions of the Supreme Court have been held to be not binding,71 and confined
proceedings in the High Court to secure a determination of the validity of national only to the facts of the case,72 these cases have also been of some importance as is
or state legislation after its passage by the legislature, whether before or after it evident from the examples cited previously.
has come into force. Similarities emerge between the American and Australian
courts as both have consistently refused to decide upon abstract, hypothetical In almost sixty years, only ten references have been made, of which nine
questions of law which may or may not gain significance in the future. have been answered and only one not entertained as it would involve choosing
between two communities of the nation and itself involved questions as to
Even in Canada, the Governor General-in-Council is empowered to refer constitutionality.73 Presidential references have always been made only when
important questions of law touching the validity or interpretation of the dominion the issues have become clarified and crystallised by discussion amongst the
or provincial legislation.68 The practice of obtaining the advisory opinions from general public and it has actually been possible for the courts to express an opinion.
the judiciary has been very extensively used in Canada. It has almost become the
normal strategy for determining constitutional issues. Thus, in light of the arguments put forth in this paper, the author wishes to
conclude by reiterating that opinions expressed by the Supreme Court, in exercise
There was a certain amount of debate in the constituent assembly when a of advisory jurisdiction under Article 143(1), is not to be considered as law. The
question arose as to whether the power to refer cases should actually be present impact of this position, however, is that proceedings which take place in an unreal
in the Constitution of India, atmosphere may sometimes prejudice the interest of certain future litigants. That
said, it is also high time that the Supreme Court decides, either through
There has been a considerable difference of opinion amongst jurists and unambiguous practice or in a judgement, the position that is to be adopted in this
political thinkers as to the expediency of placing on the Supreme Court regard, and also ensures that, in the process, the significance of advisory opinions
an obligation to advise the head of the State on difficult questions of law. is not undermined.
In spite of arguments to the contrary, it was considered expedient to
confer advisory jurisdiction upon the Federal Court under the existing
constitution by Section 213 of the Act. Having given our best consideration
to the arguments’ pros and cons, we feel that it will be, on the whole, better
to continue this jurisdiction even under the new constitution. It may be
assumed that such jurisdiction is scarcely likely to be unnecessarily invoked
and if, as we propose, the court is to have a strength of ten or eleven judges,
a pronouncement by a full court may well be regarded as authoritative
advice. This can be ensured by requiring that references to the Supreme
Court for advice shall be dealt with by a full court.69
Consensus was reached when it was agreed that there would have to be at
least 5 Judges on the bench to decide a case involving substantial questions of law
as to the interpretation of the constitution, and for the hearing of a reference by 70
Powers, Privileges and Immunities of State Legislature, Re, A. I. R. 1965 S. C. 745
the President under Article 143. While certain advisory opinions of the Supreme [S. C.]. For a contrary view, see, H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA II 2168-70
Court have been criticised very greatly, had it not been for this provision allowing (4th edn., 2004).
71
In Implementation of the Indo-Pak Agreement, Re, A. I. R. 1960 S. C. 845 [S. C.], In
67
the matter of Duty on Non-Agricultural Property, (1946) 49 C. W. N. 9 (F. R.).
JAIN, supra note 8, at 258-261. 72
68
See, SEERVAI, supra note 70, at 2175.
Canadian Supreme Court Act, 1960, §60. 73
69
In the matter of Ram Janmabhoomi, Re, (1993) 1 S. C. C. 642 [S. C.].
See http://parliamentofindia.nic.in/ls/debates/vol4p6b.html.
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