Q. Discuss the advisory jurisdiction of the Supreme Court.

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Answer

 

Introduction

 

Supreme Court of India is the highest court established by Part V, Chapter IV of the Indian Constitution. It replaced both the Federal Court of India and the Judicial Committee of the Privy Council which were at the apex of the Indian court system.

Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. The Jurisdiction of the Supreme Court of India can broadly be categorized into three parts:

i.                     Appellate Jurisdiction

ii.                   Original Jurisdiction

iii.                 Advisory Jurisdiction

 

Body

The article 143 reads as:

“Power of President to consult Supreme Court:

(1) 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, 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 thereon

(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.”

 

In short, this article confers upon the Supreme Court advisory jurisdiction. This article states as, if, at any time:

i.                     Any question of law or fact has arisen, or

ii.                   is likely to arise,

iii.                 such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court.

The president under clause 1 or 2 of article 143 of Indian Constitution may refer the question to the Supreme Court, and Court may make its advice to the president of India.

The Supreme Court has held in in re the Kerala Education Bill, 1957 that the use of the word “may” in Article 143(1), in contradiction to the use of the word “shall” in Article 143(2) shows that whereas in a reference under Article 143(2) the Supreme Court is under an obligation to answer the questions put to it, under Article 143(1) it is discretionary for the Supreme Court to answer or not to answer the questions put to it.

In a landmark judgement in Ismail Farooqui v. Union of India [(1994) 6 SCC 360], the five-judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favored one religious community and therefore, does not required to be answered.

It should be noted that however, advice rendered by the Supreme court should be considered as precedent or not under article 141, is a debatable question, but it has its own persuasive value. Till date, 12 times questions has been referred to the court, some of them are:

i.                     Re Kerala education bill,

ii.                   Re Supreme court judges appointment case,

iii.                 Babari Majid dispute etc.

 

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