Write an essay on the 'Advisory Jurisdiction' of the Supreme Court of India. Discuss any one such advisory opinion given by the Supreme Court under Article 143 (1) of the Constitution of India.

The Constitutional Basis of Advisory Jurisdiction

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. Article 143(2) provides a second, narrower category, permitting the President to refer to the Supreme Court for its opinion any dispute arising out of certain pre-constitutional treaties, agreements, or covenants specified in the proviso to Article 131, and in respect of such references, the Supreme Court, notwithstanding anything in Article 131, is bound to report its opinion, unlike references under Article 143(1) where the Court retains discretion.

This jurisdiction is advisory in the truest sense: it does not arise from a cause or matter between litigating parties, produces no binding decree, and results only in an "opinion" reported back to the President rather than a judgment enforceable under Article 141. Nonetheless, given the authority and standing of the Supreme Court, such opinions carry immense persuasive weight and have historically shaped the resolution of some of the most delicate constitutional and political controversies in the nation's history.

Nature and Scope of the Power

Several defining features distinguish this jurisdiction from the Supreme Court's ordinary judicial functions.

• The reference can be made only by the President, acting of course on the aid and advice of the Council of Ministers, and not by any private party, State Government, or High Court.

• Under Article 143(1), the Supreme Court is not obliged to answer the reference at all; it retains discretion to decline to express any opinion if it considers the question unsuitable for an advisory answer, a discretion the Court has exercised on more than one occasion.

• The proceeding is conducted with notice to interested parties and, where appropriate, with the assistance of counsel appointed to argue various sides of the question, even though there is no formal "lis" or contesting parties in the ordinary sense.

• The opinion rendered under Article 143(1) does not bind the government or lower courts as a judicial precedent in the way an ordinary judgment under Article 141 would, though as a pronouncement of the highest constitutional court, it commands very high respect and is generally treated as authoritative guidance in practice.

Illustrative Example of the Advisory Jurisdiction

Consider a situation where a serious question arises as to whether the President possesses discretionary power to withhold assent indefinitely to a Bill passed by a State Legislature, a question that, while of undoubted public importance, may not present itself through an actual litigated dispute suitable for ordinary adjudication. Article 143(1) exists precisely to allow such abstract yet vital constitutional questions to be authoritatively clarified without waiting for an aggrieved party to suffer concrete injury and approach the Court through the ordinary route of litigation, thereby allowing constitutional uncertainty to be resolved proactively rather than reactively.

The Ayodhya Reference: In re Ayodhya, Special Reference No. 1 of 1993

One of the most significant invocations of Article 143(1) arose in the reference made by the President following the demolition of the disputed structure at Ayodhya in December 1992. The President referred to the Supreme Court, under Article 143(1), the question of whether a Hindu temple or any Hindu religious structure existed prior to the construction of the demolished structure on the disputed site.

In Dr M. Ismail Faruqui v. Union of India, the Supreme Court, while examining the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 which had also been enacted in connection with the dispute, addressed the pending Presidential Reference and ultimately, by majority, declined to answer the reference at all. The Court held that the question referred was not required to be answered for any constitutional purpose, since the underlying civil suits relating to title over the disputed land were themselves pending before the courts and would in any event determine the factual and legal questions concerning the site, and that the reference, framed as it was in terms favouring one community's religious claim over the disputed structure, was superfluous, unnecessary, and did not serve any purpose that could not be more properly served by allowing the ordinary civil litigation to proceed to its logical conclusion. This decision illustrates the discretionary character of jurisdiction under Article 143(1) in the clearest possible terms: the Supreme Court is never obliged to render an opinion even where the President has made a valid reference, and the Court will decline where the underlying question is essentially one of fact and title more suitably resolved through adversarial civil litigation with full opportunity for evidence and cross-examination, rather than through the necessarily more truncated procedure of an advisory reference.

The eventual resolution of the underlying title dispute came only later, through ordinary civil litigation culminating in M. Siddiq v. Mahant Suresh Das, where a five-judge Bench of the Supreme Court finally adjudicated the title suits themselves and directed the handover of the disputed land for construction of a temple while providing for allotment of alternative land for a mosque, demonstrating precisely the point the Court had made in declining to answer the Presidential Reference years earlier, namely that questions of fact and title are best resolved through full-fledged adversarial trial rather than the advisory route.

Other Notable Exercises of Article 143(1)

The advisory jurisdiction has been invoked on several other occasions of great constitutional consequence, illustrating its role as a mechanism for resolving high-stakes uncertainty before it hardens into a live dispute. In In re Kerala Education Bill, 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 been enacted into law, and the Supreme Court examined the Bill's provisions in the context of the right of religious and linguistic minorities to establish and administer educational institutions under Article 30. In the Presidential Reference concerning the Third Judges Case, In re Special Reference No. 1 of 1998, President K.R. Narayanan referred to the Supreme Court nine questions concerning the process of appointment and transfer of judges following the Second Judges Case, and the Court, answering the reference, refined the composition of the collegium to include the Chief Justice of India and the four senior-most judges, illustrating how the advisory jurisdiction can be used to resolve institutional ambiguity in an area, judicial appointments, of the highest sensitivity for the balance of power between the executive and the judiciary.

The advisory jurisdiction, therefore, occupies a distinctive place in the constitutional architecture, permitting the executive to draw upon the Supreme Court's authority to resolve looming legal uncertainty of grave public consequence, while the Court itself has, through cases such as the Ayodhya reference and the Third Judges Reference, developed a careful jurisprudence of restraint, answering questions where institutional clarity genuinely requires judicial guidance, yet declining where the matter is better suited to ordinary adversarial litigation with the full rigour of evidence and cross-examination that an advisory opinion, by its very nature, cannot replicate.