Discuss the advisory jurisdiction of the Supreme Court of India.

The Constitutional Basis

Article 143(1) provides that 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, the President may refer the question to the Supreme Court for consideration, and the Court, after such hearing as it thinks fit, may report to the President its opinion thereon. The use of the word "may" in relation to the Court's response is deliberate and significant, since it signals that the Supreme Court retains discretion to decline to answer even a validly made reference, a discretion it has in fact exercised.

Article 143(2) creates a second and narrower category of reference, confined to disputes arising out of pre-constitutional treaties, agreements, covenants, or similar instruments falling within the proviso to Article 131, which are excluded from the Supreme Court's ordinary original jurisdiction under that Article. Crucially, in respect of Article 143(2) references, the Constitution provides that the Supreme Court, notwithstanding anything contained in Article 131, shall report its opinion, removing the discretion the Court otherwise enjoys under Article 143(1).

Distinctive Features of the Jurisdiction

Several features mark this jurisdiction out as fundamentally different from the Supreme Court's ordinary adjudicatory role.

• Only the President can make a reference, acting on the aid and advice of the Council of Ministers; no private litigant, State Government, or High Court can invoke Article 143 directly.

• There is no requirement of an actual lis or contesting parties with opposed interests; the reference may concern a purely hypothetical or anticipated question, so long as it is of sufficient public importance.

• The Court's response is termed an "opinion" reported back to the President, not a "judgment" or "decree," and it therefore does not, strictly speaking, attract the binding force that Article 141 confers on law declared by the Supreme Court in its ordinary jurisdiction, though in practice such opinions carry very high persuasive authority given the eminence of the forum.

• The Court may, and sometimes does, decline to answer a reference altogether where it considers the question unsuited to the advisory process, particularly where the matter turns on disputed questions of fact more appropriately resolved through full-fledged adversarial litigation with evidence and cross-examination.

Notable Advisory Opinions

The Supreme Court has exercised this jurisdiction on several occasions of considerable constitutional consequence, and examining a few of these illustrates both the value and the limits of the advisory process.

In In re Kerala Education Bill, 1957, one of the earliest references under Article 143(1), the President sought the Court's opinion on the constitutional validity of certain provisions of a State education Bill even before it had become law, allowing the government to test the Bill's compatibility with the right of religious and linguistic minorities to establish and administer educational institutions under Article 30 before enacting it, thereby averting the disruption that would follow from an enactment being struck down after having already taken effect.

In In re The Special Courts Bill, 1978, the President referred questions concerning the constitutional validity of a Bill proposing special courts for trial of offences committed during the Emergency by certain categories of persons holding high office, and the Supreme Court examined the Bill's classification for compliance with Article 14, illustrating how advisory opinions have been used to pre-empt constitutional controversy over politically sensitive proposed legislation before it is passed into law.

In In re Cauvery Water Disputes Tribunal, the President referred to the Supreme Court the question of the validity of an ordinance issued by the State of Karnataka that had the effect of nullifying an interim order of the Cauvery Water Disputes Tribunal, and the Supreme Court, in its advisory opinion, held that the State legislature lacked competence to enact a law that had the effect of overriding a decision of the Tribunal, since such a law would encroach upon a domain constitutionally assigned to the Tribunal's adjudicatory process, demonstrating the utility of the advisory route in resolving urgent inter-state federal friction over shared natural resources without the delay of ordinary litigation.

In In re Special Reference No. 1 of 1998, arising from President K.R. Narayanan's reference following the Second Judges Case, the Supreme Court was asked nine questions concerning the meaning of "consultation" with the Chief Justice of India in matters of appointment and transfer of judges, and the Court's opinion refined the composition of the collegium to include the Chief Justice and the four senior-most judges of the Supreme Court, an opinion that has since been treated as authoritative and binding in practice on the process of judicial appointments, illustrating how an advisory opinion, though not technically a judgment under Article 141, can nonetheless settle an institutional question with lasting practical effect.

By contrast, in Dr M. Ismail Faruqui v. Union of India, arising from the Presidential Reference following the demolition at Ayodhya asking whether a Hindu temple had existed on the disputed site prior to construction of the demolished structure, the Supreme Court, by majority, declined to answer the reference altogether, holding that the question was essentially one of disputed fact more properly resolved through the ordinary civil suits on title that were already pending, and that answering the reference would serve no necessary constitutional purpose, particularly since the reference appeared to favour the claim of one religious community over the disputed structure. This decision illustrates vividly the discretionary limit built into Article 143(1): the Court will decline to render an opinion where the question is not genuinely suited to summary advisory determination and is better left to full adversarial trial, a limit that Article 143(2) references do not carry, since the Court there has no choice but to answer.

Illustration

Suppose a genuine constitutional doubt arises over whether the Governor of a State possesses unfettered discretion to withhold assent indefinitely to a Bill passed by the State Legislature, a question of undoubted public importance affecting the functioning of the federal structure but which may not yet have crystallised into an actual litigated dispute. Article 143(1) allows the President to refer precisely such a question to the Supreme Court for authoritative clarification, allowing the constitutional position to be settled proactively rather than waiting for a State to suffer actual prejudice and then litigate the question through the ordinary adversarial process.

The advisory jurisdiction, therefore, functions as a carefully calibrated safety valve within the constitutional scheme, permitting the executive to draw upon the Supreme Court's authority to resolve weighty and often urgent legal uncertainty before it hardens into full-blown litigation or political crisis, while the Court itself, through opinions ranging from the Kerala Education Bill and Cauvery references to the Third Judges Reference, and through its considered refusal to answer in the Ayodhya reference, has developed a disciplined jurisprudence distinguishing genuine questions of law suited to authoritative clarification from disputed questions of fact that only the rigour of ordinary adversarial trial can properly resolve.