Discuss the powers of President to consult Supreme Court under Article 143 of the Constitution. Whether the Supreme Court can decline to answer a reference? Explain.

The Presidential Power Under Article 143

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 power to refer belongs exclusively to the President, exercised of course on the aid and advice of the Council of Ministers under Article 74, and cannot be invoked by any private litigant, State Government, or even a High Court. The two conditions embedded in the text are significant: the question referred must genuinely be one of public importance, and it must be of such a nature that obtaining the Supreme Court's opinion is expedient, meaning the reference power is not meant for every legal query the executive might have but only for matters of substantial constitutional or governmental consequence.

Article 143(2) creates a distinct and narrower category, permitting the President to refer to the Supreme Court any dispute arising out of a pre-constitutional treaty, agreement, covenant, engagement, sanad, or similar instrument falling within the proviso to Article 131, that is, disputes excluded from the Supreme Court's ordinary original jurisdiction over Centre-State disputes because they concern such pre-existing instruments. Crucially, this clause provides that the Supreme Court "shall" report its opinion, a mandatory formulation entirely different from the discretionary "may" that governs Article 143(1) references.

Whether the Supreme Court Can Decline to Answer

The text of Article 143(1) itself supplies the answer: the Court "may" report its opinion, a word the Supreme Court has consistently read as conferring genuine discretion rather than an obligatory duty, distinguishing this from the mandatory language of Article 143(2). The Court has, on more than one occasion, exercised this discretion to decline a reference altogether, and the reasons for such refusal illuminate the character of the advisory jurisdiction as fundamentally different from ordinary adjudication.

The clearest illustration of this discretionary refusal arose in Dr M. Ismail Faruqui v. Union of India, concerning the Presidential Reference made following the demolition of the disputed structure at Ayodhya in 1992, where the President had referred under Article 143(1) the question of whether a Hindu temple or religious structure existed at the site prior to the construction of the demolished structure. The Supreme Court, by majority, declined to answer this reference, holding that the question posed was essentially one of disputed fact concerning title and religious use of land, a matter already the subject of pending civil suits before the courts where evidence could be led and cross-examination conducted, and that the reference, appearing to favour the position of one religious community over the disputed site, was superfluous and served no independent constitutional purpose that could not be better achieved by allowing the ordinary civil litigation to run its full course. This decision demonstrates the Court's insistence that the advisory jurisdiction under Article 143(1) is not meant to serve as a substitute for or to pre-empt an ongoing adversarial trial process, particularly where the underlying question is one of fact rather than of law.

An earlier instance of similar caution, though not an outright refusal to answer, is found in In re The Kerala Education Bill, 1957, where the Supreme Court, while agreeing to answer the reference concerning the constitutional validity of provisions of a proposed State education law affecting minority educational rights under Article 30, made clear that it would examine only those questions that were genuinely ripe for an advisory opinion and would exercise caution in opining upon provisions whose effect could not be assessed without the Bill's actual operation, reflecting an inherent judicial reluctance to render opinions on matters that are, in substance, hypothetical or insufficiently concrete.

Reasons Underlying the Court's Discretion

Several considerations explain why the Supreme Court insists on retaining discretion under Article 143(1) rather than treating every reference as one it must necessarily answer.

• Disputed questions of fact, particularly those concerning historical or evidentiary matters such as title to land or the prior existence of a structure, are considered unsuited to the advisory process, which lacks the full procedural apparatus of an adversarial trial with examination and cross-examination of witnesses.

• Where the same question is already the subject matter of pending litigation between actual parties, the Court has shown reluctance to pre-empt that litigation through an advisory opinion, preferring the matter to be resolved through the ordinary judicial process with a proper record.

• Where the framing of the reference itself appears skewed or likely to be perceived as favouring one party or community's position, the Court has considered it inappropriate to lend its authority to answering such a reference, since to do so might compromise the perceived neutrality and institutional standing of the Court.

• The Court has also been alert to the possibility of Article 143(1) references being used by the executive as a device for shifting political responsibility for a difficult or controversial policy decision onto the judiciary, an outcome inconsistent with the advisory jurisdiction's proper function of resolving genuine questions of law rather than absorbing political controversy.

Contrast With the Mandatory Duty Under Article 143(2)

The absence of any such discretion under Article 143(2) sharpens the point. Since that clause deals specifically with a narrow category of pre-constitutional treaty disputes that Article 131 itself excludes from the Supreme Court's ordinary original jurisdiction, the framers evidently considered it necessary to ensure that these disputes, having nowhere else to go for authoritative resolution, must receive a definite answer from the Supreme Court, hence the mandatory "shall." No comparable urgency or structural necessity attaches to the general category of references under Article 143(1), which is precisely why the framers left discretion with the Court there.

Illustration

Suppose the President, faced with a serious controversy over whether a particular constitutional amendment procedure had been validly followed, decides the matter is of sufficient public importance to refer to the Supreme Court under Article 143(1). If the question is a genuine, discrete question of constitutional interpretation, similar in character to the questions answered in In re Special Reference No. 1 of 1998 concerning the meaning of "consultation" in judicial appointments, the Court would likely proceed to answer it, since such a question is squarely one of law suited to authoritative clarification. But if the same reference, though framed as a question of law, in truth turns on contested facts about what transpired during the amendment process, facts that would need to be established through evidence and testimony from those actually involved, the Court, following the reasoning in the Ayodhya reference, would be justified in declining to answer, since the advisory process is not designed to substitute for a full evidentiary trial.