ADVISORY JURISDICTION OF SUPREME COURT: A DISCUSSION

 ADVISORY JURISDICTION OF SUPREME COURT: A DISCUSSION

                                      YAKSH*

 

  The President of India under Article 143 of the Constitution of India can take the opinion of the Supreme Court of India on any question of fact or law which can be important to the public of our country and he may need some advice from The Supreme Court of India. This process is also known as The Presidential Reference.

i.)                  If The President Of India sees any question of fact or law has been raised or is going to arise and the question of fact is of such a nature and is very important to the public that it’s to get the Supreme Court’s opinion on it, The President has the option to refer such question to the Supreme Court for consideration and if it fits public after the hearings, then they report it to the President for the opinion thereon.

ii.)                In Article 143 of The Constitution, The President may refer the kind of dispute mentioned in the provision to Supreme Court for its opinion and if the Court after hearing shall report its opinion to The President if they think it fits.

The advisory Jurisdiction of Supreme Court came in the Constitution of India from the Government of India Act, 1935 and the function which conferred and advisory function in the federal court was section 213(1) in the provision of the Government of India Act, 1935.

   ESSENTIAL ASPECTS THAT COVERS ADVISORY JURISDICTION

i.)                  Article 143 of the Constitution doesn’t explain about the adjudication or the administration of justice. There is no adjudication but a mere consultation which is made to help or assist The President as an advisory function.

ii.)                Everything should be forwarded to the President in the report as an opinion of the Supreme Court but not as the Judgement or Decree.

iii.)              There is a wide scope of the provision which provides an option to the President to refer important question of fact or anything of public importance to the Supreme Court.

iv.)              The President is not bound by the opinion of the Supreme Court because that opinion is only for the advice for the President and not necessary to be followed. It’s the President who have to choose the advisory to be followed or to not be followed. Even if the opinion given by the Supreme Court may not be binding but it has a heavy persuasive value

v.)                Senior Advocate and a member Sh. Ram Jethmalani introduced a bill in the Lok Sabha (House of The People) for setting up the special courts to fastenthe  the trial of case during the emergency. The President was acting under article 143 of the Constitution on 1 August, 1978, So the President referred some questions of public importance to the Supreme Court for their opinion in the Special Courts Bill, 1978 and the questions were:-

a.)    If any bill or provisions would be enacted, then will they be considered valid or invalid constitutionally.

b.)     The power of Supreme Court under Article 143 and whether the law laid down in the opinion is “The law laid down by the Supreme Court” under Article 141 of the Constitution.

While Justice Chandrachud was dealing with all the mentioned questions, he accepted the opinion of the Supreme Court under 143(1) was not law within the meaning of Article 141, and His Lordship observed that:

"It would be peculiar that a choice given by this Court on an issue of law in a arguments between two private should be restricting on all courts in this country however the warning assessment should tie nobody by any means, regardless of whether, as in the moment case, it is given subsequent to giving notification to every invested individual, in the wake of hearing everybody concerned."

vi.)              The Supreme Court remains free to overrule the decision taken in an opinion under Article 143(1) and is also free to re-examine.

vii.)            The first reference under Article 143 was made in the Delhi 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 answer in emphatic is no. The Supreme Court is not bound to give its opinion under the Article 143 of the constitution and the Supreme Court has the option to decline to give its opinion under section 143 in case they are not willingly doing it and think that it is not proper and can’t be done. This was held in the case of M. Ismail Faruqui Vs. Union Of India in Supreme Court of India.

M. Ismail Faruqui V. Union of India

The Apex Court got the petitions filed before High Court transferred, heard all the matters collectively along with the reference made under Article 143 (1) of the Constitution and decided vide its judgment dated 24.10.1994 by the Constitution bench in case of M. Ismail Faruqui (Dr) v. Union of India.

  In 1994, a five-judge Supreme Court bench had held that a mosque was not an “essential part of the practice of the religion of Islam” and that namaz could be offered anywhere and hence, “its acquisition (by the state) is not prohibited by the provisions in the Constitution of India”.

There was a three judge bench comprising Justice Dipak Mishra(CJI at that time), Justice Ashok Bhushan and Justice S. Abdul Nazeer of Supreme Court and the Bench ruled that three judge are enough and need not to be sent to a larger bench.

On a Presidential reference looking for the Supreme Court's viewpoint on an inquiry "regardless of whether a sanctuary initially existed at the site where the Babri Masjid hence stood" was would not be replied by the five judge bench of the Supreme Court on the ground that the inquiry was pointless and superfluous and gone against to secularism and inclined toward one strict local area and subsequently, doesn't needed to be replied.

In the Education Bill of Kerala, 1957, the bill was reserved for consideration and the President referred the bill to the Supreme Court of India so that they can give their opinion on its validity. In the Education bill of Kerala the Supreme Court of India held that instead of using the word shall in Article 143(2) and used the word may in Article 143(1) shows that though in a reference under Article 143(2) the Supreme Court is under a commitment to address the inquiries put to it, under Article 143(1) it is optional for the Supreme Court to reply or not to respond to the inquiries put to it.

To conclude, the Advisory Jurisdiction of the Supreme Court in Article 143 engages the President to make references to Supreme Court on any issues yet it can't be said as the Jurisdiction of Supreme Court. The perspectives taken by the Court isn't restricting on the President and it isn't law inside Article 141. It is on court to inspect whether or not it should be replied, on the off chance that not then with substantial reasons.

*Student of B.A.,LL.B, Rajiv Gandhi National University of Law, Patiala.