Saturday, 26 December 2015

Advisory Jurisdiction of the Supreme Court

The Supreme Court has original, appellate and advisory jurisdiction. Its advisory jurisdiction is provided under article 143 of the Constitution. Article 143 of the Constitution of India deals with Power of President to consult Supreme Court. Article 143 reads as:

                         “(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 Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters:

(a) On any question of law or fact of public importance which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.

In the first case, the Supreme Court may tender or may refuse to tender its opinion, to the president.  But, in the second case, the Supreme Court 'must' tender its opinion to the president.
In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it. So far, the president has made fourteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).

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 held by the Supreme Court in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that in such a case, reasons must be indicated. In Ismail Faruqui case, the five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babri Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered.

The first reference under Article 143 was made in the Delhi Laws case (1951). In Delhi Laws Act case, the Court considered the validity of the Act with regard to delegated legislation.

References made under article 143 -
1.       In re Delhi Laws Act in 1951
2.       In re Kerala Education Bill in 1958
3.       In re Berubari Union in 1960,
4.       In re Sea Customs Act in 1963
5.       In re Keshav Singh's case relating to the privileges of the Legislature in 1964
6.       In re Presidential Election in 1974
7.       In re Special Courts Bill in 1978
8.       In re Jammu and Kashmir Resettlement Act in 1982
9.       In re Cauvery Water Disputes Tribunal in 1992

10.   Re: Rama Janma Bhumi case in 1993, consultation process to be adopted by the chief justice of India in 1998, legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001,

11.   Re: the constitutional validity of the Election Commission's decision on deferring the Gujarat Assembly Elections in 2002


12.   In re Punjab Termination of Agreements Act in 2004

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