ADVISORY JURISDICTION OF SUPREME COURT

Q. Under what circumstances can the President of India seek the opinion of
the Supreme Court? What is the binding nature of such an opinion? Discuss
with reference to decided cases under Article 143 of the Constitution of India?

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. The Article states- 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 above extract of article 143 shows that clause (1) is general in nature subject to
the fulfillment of the conditions precedent prescribed therein. Clause (2) on the other
hand, deals with a specific subject matter by referring to the proviso of article 131. As
stated above article 131 of the Constitution confers original jurisdiction on the
Supreme Court. The said jurisdiction extends to disputes between the government of
India and one or more states or between the government of India and any state or
states on the one side and one or more states on the other or between two or more
states if and so far any question of law or fact on which the existence or the extent of
a legal right depends. The language of article 143 is wide enough to empower the
President to refer to the apex court for its advisory opinion on any question of law or
fact which has arisen or is likely to arise, provided it appears to the President that the
question referred is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it. It is not necessary that
the question on which the opinion of the Supreme Court is sought must have actually
arisen. It is competent for the President to make a reference under article 143(1) at
an anterior stage, namely, at the stage when the President is satisfied that the
question is likely to arise. The satisfaction as to whether the question has arisen or is
likely to arise and whether it is of such a nature and of such public importance that it
is expedient to obtain the opinion of the Supreme Court upon it, is a matter entirely
and essentially for the President to decide.1

Binding Nature of Advisory Jurisdiction

The marginal note of article 143 shows that the President is not bound by the opinion
of the Supreme Court. The marginal note of article 143 reads “Power of President to
Consult Supreme Court”. The word consult shows beyond doubt that the President is
not bound to give effect to the opinion. opinion cannot be enforced or executed.
Article 142 which deals with the enforcement of decrees and orders of Supreme
Court, under clause (1) states that only decrees and orders of the Supreme Court
can be enforced. Since an opinion is neither a decree nor an order, it cannot be
enforced.2 As opinions are not “law declared” within the meaning of article 141 of the
Constitution.3 Therefore any advisory opinion rendered by this court on the reference
made to it by the President may not amount to judicial adjudication properly so-called
and since there are no parties as such before the court in the Reference nobody
would be bound by our answers the advisory opinion rendered by us in the present
Reference Proceedings is not adjudication properly so-called and would bind no
parties as such.4 This clearly means that the President is not bound by whatever the
Supreme Court says in its advisory jurisdiction.

In re Special Courts bill, It was stated that the advisory opinion should bind no one
at all but advisory opinion given by the Supreme Court has high persuasive authority,
it is not law declared by it within the meaning of Article 141.5 Additionally Any opinion
given under cl. (2) of Art. 143 can only be advisory to the executive since if it is given
any binding effect on the executive, such a provision will be restoring the original
jurisdiction of the court over those matters which are expressly taken out of such
jurisdiction by the proviso to Art. 131 and Art. 363 6

*Note*

1
Pooja Jha, “Supreme Courts Advisory Jurisdiction Under Article 143”, 42 JILI (2000) 458

2
Pooja Jha, “Supreme Courts Advisory Jurisdiction Under Article 143”, 42 JILI (2000) 458

3
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

4
In Re Keshav Singh AIR 1965 SC 745

5
In re Special Courts bill (1979) 1 SCC 380

6
Lily Isabel Thomas, “Advisory Jurisdiction of Supreme Court of India”, 5 JILI (1963) 475.
The marginal note of article 143 is worded as “Power of President to consult
Supreme Court”. Both clauses (1) & (2) empowers the President to refer to the
opinion of the Supreme Court relating to the aspects contained therein.

Article 74(1) mandates the President to act in accordance with the aid and advise of
his council of ministers. Therefore, though the reference may go in the name of the
President, in reality, the reference is by the council of ministers. But if the President
consults the Supreme Court under article 143 in the absence of an advise to that
effect from the council of ministers, he will be committing a violation of the
Constitution [that is, violation of article 74(1)] for which he may be impeached7

List of cases where president took advisory opinion of Supreme Court under Article
143-

1. In re Delhi Laws Act, 1912. 1951 AIR 332

2. In re Berubari Union and Exchange of enclaves
3. In re Sea Customs Act, 1878
4. In re Presidential Poll.
5. In re Special Courts Bill, 1978.
6. In re Cauvery Water Disputes Tribunal.
7. Special Reference No. 1 of 1993.

7
Pooja Jha, “Supreme Courts Advisory Jurisdiction Under Article 143”, 42 JILI (2000) 458