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DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
2016-2017

BASICS OF CASE LAW

[FINAL DRAFT]
ON
ADVISORY JURISDICTION OF SUPREME COURT
SUBMITTED FOR THE PROJECT WORK UNDERTAKEN IN THE
PARTIAL FULFILLMENT OF B.A. LL.B. (HONS.) 5 YEARS
INTEGRATED COURSE OF DR. RAM MANOHAR LOHIYA NLU,
LUCKNOW.

UNDER THE GUIDANCE OF: SUBMITTED BY:

MR. SHASHANK SHEKHAR YAMINI SINGH
ROLL NO. -
DR. R.M.L.N.L.U. 1st SEMESTER

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ACKNOWLEDGEMENTS
Apart from the efforts of me, the success of this project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my gratitude
to the people who have been instrumental in the successful completion of this project. I
would like to show my greatest appreciation to Asst. Prof. Mr. Shashank Sir. I can't say thank
you enough for your tremendous support and help. I feel motivated and encouraged every
time I attend your class. Your willingness to motivate me contributed tremendously to my
project. I also would like to thank you for showing me some example that related to the topic
of my project. Without your encouragement and guidance this project would not have
materialized. Besides, I would like to thank the authority of Ram Manohar Lohiya National
Law University for providing us with a good environment and facilities to complete this
project. Finally, an honourable mention goes to my family and friends for their
understandings and supports on me in completing this project. Without helps of the particular
that mentioned above, I would face many difficulties in completing this project.

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PREFACE
There are basically three types of jurisdiction of the Supreme Court of India which include
hereby firstly, original jurisdiction which deals with the issues that directly come under the
jurisdiction of the Supreme court for e.g. the violation of fundamental rights and the issues
dealing with the conflict of two or more states. Secondly comes the appellate jurisdiction that
is the jurisdiction which deals with the appeal section. And, thirdly the advisory jurisdiction
is basically consulting president on the issue which is of utmost public importance.

This projects deals with the case of third one that is Advisory jurisdiction of Supreme
Court, there are many questions regarding to this particular jurisdiction of Supreme Court.
This project includes the chapters like:

Chapter 1: explains the various references under the clauses (1) of article143, provides the
definition of this particular article,

Chapter 2: In this chapter it is explained that whether in countries like U.S.A, U.K., Australia,
and Canada have this jurisdiction and if yes than up to what extents.

Chapter 3: It is very important to know that what the binding nature of article 143 it explains
what type of binding nature it has on president.

Chapter 4: This chapter deals with the number of cases that were referred under this article

Chapter 5: Likewise article 143(1) what the article 143(2) of Indian Constitution says or
speaks of.

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TABLE OF CONTENTS
Introduction....................................................................................................4
Reference under clause (1) of article143.......................................................6
Status of Advisory Jurisdiction...................................................................6-7
Binding nature of Article 143(1) of Indian Constitution of India..........7-8
Cases under Article 143(1) of constitution..........................................8-9
Reference under Article 143(2) of constitution.........................................9-10
Conclusion...................................................................................................10-11
Bibliography................................................................................................11-12

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ABBREVIATION USED:

A.I.R- All India Report

SC-Supreme Court

STATUTES REFERRED:

Canadian Supreme Court Act, 1952

The judicial committee act 1833
Special Reference No.1 of 1964
In re the Delhi Laws Act, in 1951
Kerala education Bill

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INTRODUCTION
Normally the function of a court of law is to answer question of law or fact when properly
raised before it in a dispute between parties. This article however confers a particular
jurisdiction commonly called advisory jurisdiction, on the Supreme Court to give its opinion
on question unconnected with pending case.

A similar power is according to article 273 at the state level. According to this jurisdiction if
at any time it appears to the president 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 thereupon.

Article 143 authorises the president to refer to the Supreme Court a question of fact or law
has arisen or is likely to arise, which in his opinion is of such a nature and of such public
importance that it is expedient to obtain the opinion of Supreme Court upon it, he may refer it
to court for its consideration. The court than after such hearing gives its opinion in the given
case or circumstances.

Article 143 does not deal with jurisdiction of Supreme Court but with the power of the
president. It does not refer to any adjudication at all but with consultation. There is no
judgement, decree or order; there is opinion to be forwarded or provided to the president in a
report to him. The main or simply the plain duty and function of the Supreme Court under
this article is to consider the question on which the president has made the reference and to
provide its opinion of course to the president.

Having regarded to the nature of the advisory jurisdiction under this article the reference
should be constructed narrowly rather than broadly. It is assumed that every reference under
this article 143 has to be the continued existence of a context or conditions on the basis of
which the question of law or fact arises or likely to arise.

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REFERENCE UNDER CLAUSE (1) OF ARTICLE 143

WHAT ARTICLE 143(1) SPEAKS?
According to article 143(1) of the Indian constitution 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 a 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, reports to the president its
opinion thereon.1
Well it is not necessary that only a question which has actually arisen for its opinion.
The president may take reference even at an anterior stage, namely when the question
is likely to arise in future. It is a matter essentially for the president to decide whether
the question is of such a nature and of such a public importance that it is very
important to take the courts opinion thereon.

The president can refer to the Supreme Court for its opinion whether or not it has any
relation to the entries in the three lists of the Indian Constitution i.e. that is the state
list, centre list and the concurrent list or whether it falls in the central sphere or the
state sphere or in simple words I can say that it is above the centre state relation what
article 143(1) requires is the presidents satisfaction that
1. A question of law or fact has arisen or is likely to arise , and
2. The question is of such a nature and of such public importance that it is
expedient to obtain courts opinion on it2.

The satisfaction on both these counts would justify references to the Supreme Court.
Question regarding the validity of a statute in force or a proposed Bill may be referred
to the court as Art 143(1). The phrases of the constitutional provision are quite broad
to cover all types of references. In article 143(1), the use of word may indicate that the
it is not the obligation of the Supreme Court of India to express its opinion on the
reference made to it. It has discretion in the matter and may, in proper case, for good
reasons, decline to express any opinion on the reference on the question submitted to
it

1 Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworth Wadhwa,
Nagpur, 2009, pg 60001

2 Prof MP Jain, Indian Constitutional Law, Wadhwa Reprint, Nagpur, 2007,pg 251

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STATUS OF ADVISORY JURISDICTION IN OTHER CONSTITUTION

WITH REFERENCE TO CLAUSE(1):
1. U.S.A:-
There is no provision in the federal constitution for seeking advisory opinion from
the apex or we can say that from the Supreme Court and the Supreme Court has
steadily refused to pronounce any opinion saves as to the legal rights of litigants in
actual controversies. In United States of Americas constitution all the judicial
interpretation of their constitution or any decision related to constitutional
problems has, to be made in the ordinary course of litigation between the parties.
The court will not express any opinion as to the validity of wisdom of any
proposed executive administrative action.
Some of the state constitution (e.g.massachussets), however, empowers the
legislature and the executive to seek the opinion of the Supreme Court of the state
upon any important question of public interest or law
2. AUSTRALIA:-
The Australian High Court has also refused to give advisory opinions on the basis
that the essential function of the judiciary is the decision of matters between
parties or we call it as Inter Parties, and not any question of legal reconsideration.
This is not only for the judiciary or the courts but also for the legislature, even
legislature cannot require the court to exercise any such question. It was observed
therein that the essential function of the judiciary was the decision of the inter
parties and not the consideration of abstract legal question was recognized of the
apex court there in refusing to give advisory jurisdiction pursuant to statutory
authority.
3. CANADA:-
Section 55 of the Canadian Supreme Court Act, 19523, on the other hand
empowers the governor general in council to refer to the Supreme Court for
hearing and consideration any important question of law or fact touching any
matter and the governor general is the main or it can be said that governor general
is the final authority on the question whether a matter is referred to an important
question related to law. A peculiar feature of this jurisdiction of the Supreme Court
of Canada is to answer the particular question under reference. This advisory
jurisdiction is an exception to the general rule adhered to by the court that it will

3 Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworth Wadhwa, Nagpur, 2009,
pg 6004

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not decide abstract question, the Supreme Court itself has upheld the
constitutionality of legislation providing for such reference or abstract question,
but according to article 56 of Supreme Court act 1952, it is obligatory to
pronounce advisory opinion and it also empowers either house of the dominion
parliament to refer any question to the Supreme Court for its advisory opinion.
4. ENGLAND:-
Sec 4 of the judicial committee act 18334 provides that his majesty may refer to
the Privy Council-Any such other matter as his majesty shall think fit under this
provision crown has the power to refer to the judicial committee any legal issue on
which it desires advice from the committee.

BINDING NATURE OF ARTICLE 143(1) OF CONSTITUTION OF

INDIA

In Special Reference No.1 of 19645 of the Supreme Court held that it is quite true that under
article 143(1) even if question are referred to this court for its advisory opinion, the court is
not bound to give such advisory opinion in every case. Article 143(1) provides that after the
questions formulated by the president are received by the court, it may after such hearing as it
thinks fit, report its opinion t the president thereon.

The use of word may in the provision prescribed by the article 143(2) clearly brings out the
fact that in given case the court may respectfully refuse to express its advisory opinion if it is
satisfied that it should not express its opinion having regard to the nature of the questions
forwarded to it and having regard to the relevant facts and circumstances.

Such a situation may arise if purely socio economic or political question has no
constitutional significance are referred to the court or the questions that are referred raise
hypothetical issue that are not answerable. It is to ensure such contingency that the article
uses may and enables the Supreme Court to refuse to answer questions if it is satisfied.

REFERENCES UNDER ARTICLE 143(1) OF CONSTITUTION

4 Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworth Wadhwa,
Nagpur, 2009, pg 6007.

5 Ibid pg no. 6008.

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During the last fifty years since the constitution, came into force, several references have
been made to the Supreme Court under article 143(1), the references are:

In re the Delhi Laws Act, in 19516

The Supreme Court pronouncement in the Delhi Laws Act gave timely guidance to
the central executive regarding the scope and the extent of its legislative power under
the Delhi Laws Act7. Ti thus avoided embarrassment to the central government and
the difficulties to the people which might have arisen had any act extended to Delhi or
any other part states to be declared ultra vires.
Berubari
In re Berubari gave timely guidance to the central government as to how it should
implement the indo Pakistan boundary agreement between the prime minister of India
and Pakistan. Had the agreement implemented in the way the government was
contemplating (through an act of the parliament), great embarrassment would have
been caused to it had the act been declared unconstitutional later as it was bound to be
in the view of Supreme Court decision.
Kerala education Bill
In re the Kerala Education Bill sought the Supreme Courts opinion on the
constitutional validity of the Kerala Education Bill.
In its advisory opinion Supreme Court of India settled two important points:
1. The court rejected the contention that what was referred to the court for its opinion
was not a statute already put into force, but a bill which was yet to be enacted. The
court argued that Article143 (1) does contemplate the reference of a question of
law that is likely to arise.
2. The reference was an incomplete one and the court should not entertain such a
reference. The court rejected the argument saying that it is to be ascertained by the
president about the type of question that are referred and if he does not entertain
any serious doubt on the other provision it is not for any party to say that doubts
arises also out of them and the court cannot go beyond the reference and discuss
those problems.
Cauvery water
In the matter of Cauvery water disputes tribunal, the main question that was referred
to the court for its advisory jurisdiction was whether the particular tribunal was set
under Inter State Water Dispute Act, 1956, has power to grant an interim relief to the

6 AIR 1951 SC 332;

7 Prof M.P.Jain, Indian Constitutional Law, Wadhwa Publishers, Nagpur, 2007, pg 254

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parties to the d dispute. In this case again, the question whether the opinion given by
the court on the presidential for reference under art 143 on all court was debated.
Thus, the court leaves the matter where it stands with the following observation8.
It has been held adjudicative that the advisory opinion is entitled to due weight and
respect and normally it will be followed. We feel that the said who holds the field
today may usefully continue to do till a more opportune time.

REFERENCE UNDER 143(2) OF INDIAN CONSTTUTION

The President may, not withstanding anything in the proviso of article 131, refer a dispute of
the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme
Court after such hearing as it thinks fit, report to the president its opinion thereon9.

What is article 131?

Original jurisdiction of the Supreme Court subject to the provision of this constitution, the
Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any
dispute:

Between the government of India and one or more states ; or

Between the Government of India and any state or states on one side and one or more
other states on the other states on the other; or
Between two or more states, if and in so far as the dispute involves any
question(whether law or fact) on which the existence or the extent of a legal right
depends: provided that the jurisdiction shall not extend to a dispute arising out of any
treaty, agreement, covenant, engagements, and or other similar instrument which,
having been entered in the commencement of this constitution, continues in operation
after such commencement, which provides that the aid jurisdiction shall not extend to
such a dispute10.

Under article 143(2), it is obligatory on the Supreme Court to entertain a reference and to
report to the president its opinion thereon. The court has, under clause (1), discretion in

8 AIR 1992 SC 552, 558

9 http://www.indiankanoon.org/doc/827301/viewedon 28-09-2013

10 http://indiankanoon.org/doc/786824/viewedon 28-09-13

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the matter and may in a proper case and for good reasons decline to express any opinion
on the question submitted to it. However even in matters arising under 143(2), the
Supreme Court may be justified in returning the reference unanswered if it finds a valid
reason that the question is incapable of being answered.

The proviso to Art 131, ante, read with Art. 363(1), excludes disputes which are arising
out of the agreement which the ruler of an Indian state was a party, from the original
jurisdiction of the supreme court. But the present clause authorises the president to refer
such disputes to the Supreme Court and to get its opinion.

The difference between the two courses does not lie in the fact that the opinion of the
Supreme Court under Art 143 would not be binding upon the president; nor will it be
executable under Art 142(1). Because the cause in such dispute is political in nature, the
remedy provided for the settlement of such a dispute is not adjudication, but executive
action after consolation of the opinion of the Supreme Court.

While its optional with the Supreme Court to answer a reference made under Cl.1; it is
obligatory to answer a reference made under Cl.2- relating to a dispute arising out of pre
Constitution agreement with an Indian state.

But even in cases under Art.143 (2) the court may be justified in returning the reference
unanswered, if it finds for valid that the question is incapable of being answered.

CONCLUSION:

Article 143 is not a part of the administration of justice. It is a part of the advisory
jurisdiction machinery to assist the president (the executive) in the discharge of his duties.
When he president consults the Sup.Ct he is seeking its advice and not an adjudication of
a dispute between parties. It is settled that even if A is under an obligation to consult B
before taking any action, if there has been a proper consultation, A is not bound by the
advice given B. Article 143 confers a power on the President but does not impose an
obligation on him to consult B before taking any action, if there has been a proper
consultation, A is not bound by the advices given by B. This particular article confers
upon the Supreme Court the power to give its opinion on question unconnected with a
pending case. The only condition are that the president should be satisfied that a question

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of law or fact has arisen, or is likely to arise and that such a question is of such a nature
and of such a public importance that it is expedient to obtain the advice of the court on it.

However, the Supreme Court has to be always confining itself to the question referred to
it by the President. It cannot travel beyond the reference. The fact that the president has
only referred only some question regarding the validity of a Bill or an act, and not others
which appears to arise is no good reason for declining the reference.

On the question of whether the opinions of the Supreme Court under the contrary
advisory jurisdiction should be given equal weight as those decided otherwise, it is
believed that although these opinions are entitled to certain amount of weight and respect,
there is overwhelming authority to suggest the contrary- opinions under advisory
jurisdiction do not constitute law. In furtherance of this position, there are following
reason. First, as is evident from a literal interpretation of this Article, the law which is t be
considered binding must be the law declared, and need not necessarily be the law decided.

In almost sixty years, only ten references have been made, of which nine have been
answered and only one not entertained as it would involve choosing between two
communities of nation and itself involved question as to constitutionality. Presidential
references have always been made only when the issue have become clarified and
crystallised by discussion amongst the general public and it has actually been possible for
the courts to express an opinion.

BIBLIOGRAPHY:

Prof Jain M.P., Indian Constitutional Law, Wadhwa Publishers, Nagpur, 2007.
Seervai.H.M, Constitutional law of India, Universal law Publishing house,
Volume 3.
Datar P Arvind, Commentary on Constitutionof India, Wadhwa Publishers,
Nagpur, Volume 1.
Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworth
Wadhwa, Nagpur, 2009.

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