CHANAKYA NATIONAL LAW UNIVERSITY,NYAYA NAGAR

PATNA-800001

“ADVISORY JURISDICTION OF SUPREME COURT”

A rough draft submitted in partial fulfillment of the course for the requirement of the degree BA.LLB
(Hons) for the academic session 2020-2021

“CONSTITUTIONAL LAW II”

SUBMITTED BY-
KUMARI DIKSHA CHANDRA
ROLL-1930
BA.LLB(HONS)

SUBMITTED TO-
Prof. Dr. Anirudh Prasad
Assistant professor
INTRODUCTION

The term jurisdiction is defined as the power of the court to hear the matter. The
constitution of India provides a system where the judiciary is an independent body. Every
state has got its own High Court and The Supreme Court of India is the apex court of the
country. The Supreme Court of India came into existence on 28th January 1950. It replaced
the Federal Court of India and Judicial Committee of the Privy Council which were the apex
court before Supreme Court came into existence.

The Supreme Court of India has Original, Appellate and Advisory Jurisdiction. The Original
Jurisdiction gives the power to the Supreme Court to hear the matters which are concerned
with: Firstly, the dispute between the Government of India and one or more States.
Secondly, if there is a dispute among the states. Thirdly, under Article 32[1] the Supreme
Court has the Jurisdiction to hear in regard to enforcement of the fundamental rights. It can
issue directions, orders or writs. The Supreme Court has the jurisdiction of international
commercial arbitration under Arbitration and Conciliation Act, 1996.

The Supreme Court has appellate jurisdiction over all the courts and tribunals in India. The
Appellate Jurisdiction of the court gives the power to hear the matter under Article 132[2],
133[3] and 134[4] in respect to judgement, order or final decree given by the High Court in
the cases of civil and criminal matter. It also grants Special Leave Petition under Article
136[5] to hear the matter from any judgement, decree, sentence or passed by any Court or
Tribunal in India.

Under Article 143[6] the Supreme Court if India has got the Advisory Jurisdiction under
which it may advise the President of India on the matters which are related to the public
importance. The Supreme Court is not bound to give the advice, but it may hear the matter
then act accordingly.

 There is no specific provision for such an advisory jurisdiction in the Constitution of

the United States of America or that of Australia.
 In fact, the American Supreme Court has refused to entertain such pleas by the
Executive, it stated that it will focus on more concrete matters concerning the law of
the land.
 However, according to Section 60 of the Canadian Supreme Court Act, 1906, the
Governor-General may refer to important questions of law to the Supreme Court for
its advisory opinion.
 A similar provision that empowered the Federal Court to give an advisory opinion on
matters referred can be found in Section 213(1) of the Government of India Act,
1935. The draft constitution later replaced the words “Governor-General” and
“Federal Court” with “President” and “Supreme Court” respectively.
Re Delhi laws Act Case
The first case that came to the Supreme Court via this jurisdiction was the Re Delhi laws Act
Case. In this case, the Court considered the validity of a statute with respect to delegated
legislation. A bench of seven judges presided over the case but gave differing opinions.
While all judges agreed that the legislature had the power to delegate some lawmaking to
the executive, they differed on the extent to which such power may be delegated. In
general, the bench expressed two views:

 The Parliament can delegate its legislative power to any extent subject to the
condition or limitation that it must not efface itself or abdicate its powers.
 The Parliament could not delegate to another agency its ‘essential’ legislative
function, which implied policy formulation and enactment of policy it into a binding
rule of conduct.

Objective of the study

1. The researcher tends to understood the advisory jurisdiction of supreme court.

2. The researcher tends to analyse the concept of advisory jurisdiction sourced

from .

Research Question
1. Where is the concept of advisory jurisdiction sourced from ?
2. Is the supreme court bound to give its advice ?
3. Is the president bound to follow the advice given by the supreme court ?

Hypothesis
1. The Advisory jurisdiction of the Supreme Court in Constitution of India is sourced
from the Government of India Act, 1935.
2. The President may seek the opinion of the Supreme Court on any question of law
or fact of public importance on which he thinks it expedient to obtain such an
opinion
3. The advisory opinion has played a significant role in deciding the important issue by
the court and it has created a channel between the Executive and Judiciary

Research methodology

The researcher will be relying on Doctrinal method of research to complete the project.

Sources of data:
The researcher will be relying on secondary sources to complete the project.

1. Secondary Sources: Books, judgments and websites.

Limitations of the study:

The researcher has monetary and time limitations in completing the project. Further
emphasis will be given to work on the “Advisory jurisdiction of supreme court”.

Tentative Chapterisation:

1. Introduction: ADVISORY JURISDICTION OF SUPREME COURT

 Background of Advisory jurisdiction
2. Role played by the Judiciary in giving the Advisory Jurisdiction
 Other constitution
3. Consultative function of the Supreme court
4. Binding force of advisory opinion
 Cases
 Referrence to pre –constitutional agreement with Indian states
5. Presidential reference in 2G spectrum
6. Conclusion and suggestion

Bibliography

The researcher has consulted following sources to complete the rough proposal:

Books:

1. Constitution of India , MP JAIN

2. Introduction to the Constitution of India by Durga das basu

3. The Constitution of India by P Bakshi

Websites:

1. http://www.legalserviceindia.com/legal/article-2043-advisory-jurisdiction.html
2. https://byjus.com/free-ias-prep/advisory-jurisdiction-of-the-supreme-court/
3. https://www.cafalawblog.com/case-summaries/subject-matter-jurisdiction-can-be-
challenged-at-any-time-and-it-is-not-subject-to-the-thirty-day-time-limit-required-by-28-u-s-
c-%C2%A7-1447c