Advisory Jurisdiction

Introduction

The Constitution of India is called the Fundamental Law of India, it is also called the SUPREME DEED of Independent India and also known as the Living Document of Nation. It is clearing the doctrine, Powers of Separation, which explains the functional system of rules, structures and principles of our nation. The Constitution is defined as ‘a set of devices to subject the freedom of the holders of political power to limitation and restraints, it provides the citizen and other people, Liberty, Equality, Fraternity, Freedom. The Constitution of India has created a constitutionalism environment in our country, it is also helpful to remembering us as the ideal goal for freedom fights. In the world largest democracy country i.e. INDIA is also known for their great constitution. It reflects, Sovereign, Socialist, Secular, Democratic Republic, Justice, Liberty, Equality, Fraternity. Our Constitution was adopted by the Constituent assembly of India on 26th November, 1949 and became effective on 26th January, 1950.

 “We are under a Constitution, but the Constitution is what the Judges say is”. [1]

Governor Charles Evans Hughes

With 395 articles and over 117,000 words in our Indian Constitution, it took almost three years to draft our constitution. Our constitution contains a number of things as it is Quasi Federal Structure, Drawn for various sources it has 22 parts and 8 schedules and different parts have their different roles in it. As in chapter four of our constitution it talks about “The Union Judiciary” as it clears the role of Judiciary, which is that The Supreme Court is the highest court established and it replaced both the Federal Court of India and the Judicial Committee of the Privy Council. It is the highest court in India which takes appeals and provides advisory to the lower courts or by President of our country

The Supreme Court has original, appellate and advisory jurisdiction and Article 124 to 147 of the Constitution of India states the composition and jurisdiction of the Supreme Court of India. It has original jurisdiction which deals with dispute of Government of India and States, and if such dispute involves question of law. Basically the jurisdiction of the Supreme Court has been divided into three parts: Appellate Jurisdiction; Original Jurisdiction; Advisory Jurisdiction. The special advisory jurisdiction by Supreme Court in those matters which may specifically be referred by the President of India under Article 143 of the Constitution. 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 public importance.[2]

Article 143 as follows “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.”[3]Advisory jurisdiction is when the lower court or any constitutional body seeks the advice of the higher court in a matter of law. Section 4 of the Judicial Committee Act 1833 provides that:It shall be lawful for his Majesty to refer to the said judicial committee for hearing or consideration any such other matters whatsoever as his Majesty shall think fit.” The idea of Advisory jurisdiction of the Supreme Court has been sourced from the Government of India Act, 1935 where the provision of Section 213(1) of the government of India Act, 1935 conferred an advisory function upon the Federal Court.[4]

As we know that the function of the court is to decide the case and pass the judgement accordingly, even they don’t take any suo moto action and offer their opinion on certain things.. The court jurisdiction has to be invoked by the aggrieved party through proper procedure. But in certain circumstances Article 143 enables the Supreme Court to render the Advisory Opinion in certain situations, such advisory opinions are rendered at those situations where the President of India enables to introspect and effect suitable amendments made by the parliament in existing law. This article allows the President to refer to the Supreme Court for any question of law to obtain the Court’s Opinion on it. Such Advisory opinion is not binding on the president, even the Supreme Court may also refuse to express its opinion when the reference is vague.

Advisory jurisdiction is also known as consultative jurisdiction because normally the function of the court is to answer the questions of law or fact when properly raised before it in a dispute between the parties and this kind of power is similar which was conferred on Federal Court of Indian under Section 213 of the Government of India Act, 1935. As we know article 413 is providing and authorizes the president to refer to the Supreme Court of our country and obtains the opinion upon it, even the words of Article 143 are wide and there is no condition that it is only in respect of matter falling within the powers, functions and duties of the President.

Legislative History and Background

The role of judiciary as an advisor to the executive was for the first time introduced in India with the passing of Government of India Act, 1935. Although there was “considerable difference of opinion amongst jurists and political thinkers” regarding the empowering of the Federal Court to advise the Executive on question of law, it was considered expedient that advisory jurisdiction should be conferred upon the Federal Court under the Government of India Act, 1935.The Section 213 of the Government of India Act laid down that:

  • If at any time it appears to the Governor-General that a question of law 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 Federal Court upon it, he may, in his discretion, refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the Governor-General thereon.
  •  No report made under this section in accordance with an opinion delivered in open court with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this subsection shall be deemed to prevent a judge who does not concur from delivering a dissenting opinion.[5]

The provisions of Section 213 reveal three important points: Firstly, with regard to the question as to who can refer the matter to the court, Section 213 clearly vests the power of reference only in the Governor General to the exclusion of the Council of Ministers or legislature.

In the second part it specified the nature of the cases for reference. It was clearly mentioned that the reference was to be confined to a “question of law”. Thus questions of facts could not be referred to the courts.

In third provisions of this section show that there was no compulsion or obligation on the part of the court to give advice on a reference made to it by the Governor-General. This was the clear significance of the word ‘may’ used in Section 213.[6]

Even the reference made under this section didn’t impose any obligation on the Federal Court to accept the reference,” the court could decline to accept a reference except for a good reasons”, this statement was made by C.J. Gwyer.[7]The history of the Federal Court reveals that only four references were made to the Federal Court for consideration; and every time the Governor used his power with all care because he was aware that free discussion would take his place and opinion would be delivered in the open court. Even the question referred for advisory opinions of the Federal Court under Section 213 were different in nature and did not disclose a uniform pattern; so also the opinions rendered were four, and the standard of opinions rendered by the Federal Court laid a remarkable foundation of advisory jurisdiction subsequently vested in the Supreme Court by the Constitution of India.

Now this was the scenario during the time of Federal Court system, but after independence at the time of framing of the Indian constitution the question was whether the proposed Supreme Court of India should have an advisory jurisdiction or not. For this union appointed an ad hoc committee on the Supreme Court. The committee at that time consisted of: S. Varadachariar, A. Krishnaswami Aiyar, B.L. Mitter, K.M. Munishi and B.N. Rau. The following members submitted the report dated 21 May 1947 and recommended that the future Supreme Court of India should have an advisory jurisdiction like that given to the Federal Courts. The Drafting Committee, made by the Constituent Assembly to draft, added article 119 in Draft Constitution which is focusing the advisory jurisdiction, similar as that on Federal Courts.[8]

On 27th May, 1947 the Constituent Assembly came for discussion on clause (2) of Article 119 of the Draft Constitution. Shri H.V. Kamath who was the member of assembly raised the question to know “whether the Supreme Court will have an option to give or not its advice to the President when he refers a matter to Court”.[9]Clarifying the position, Dr. B.R. Ambedkar stated that the Supreme Court would not be bound to give advice when the matter was referred to it by the President. After that many questions arose as to why clause (2) of Article 119 is stating this, but the discussion on Article 119 could not be completed on 27th May, 1949 and was postponed to a future date.

On 14th October, 1949, Shri, T.T. Krishnamachari stated that “the deleted clause (2) of Article 119 will be restored”. A few minor variations were made in this clause and it was decided and accepted by both houses that Article 119 of the Draft Constitution has become Article 143 in the Constitution of India. This is how Advisory jurisdiction came into light. Even it has been stated that only the President of India is authorized to refer any questions of law or fact to the Supreme Court for its opinion.[10]

Nature and Scope of Article 143

Article 143 authorizes the President to refer to the Supreme Court a question of law or fact which in his opinion is of such a nature that it is expedient to obtain its opinion upon it. The words of Article 143 are quite wide and there is no condition, it is only in respect of matters falling within the powers, functions, and duties of the President in those situations where the question of law arises and the advisory opinion of the Supreme Court is needed. But the conditions which are necessary before the matter is going to be referred to the Supreme Court are First the President should be satisfied that a question of law or of facts” has arisen. Secondly, he should also be convinced that the question is of public importance to take the advice of the Supreme Court on it.

It may be seen that President acts on the advice of his Councils of Ministers if he thinks fit, even in November 1967 the Ministry of W.B suggested 7 questions to President of to refer them to Supreme Court but the president refused it because the questions were not of such a nature as to make it expedient to refer them to the Supreme Court under Article 143(1).[11] Even if the question of law which has already been decided by the Supreme Court in the exercise of its judicial powers cannot be referred to the Court under Article 143. Also if the President consults the Supreme Court under article 143 in the absence of an advice from the council of ministers, then he will be committing a violation of the Constitution, which is violation of article 74(1).

The president’s power to consult the Supreme Court is not confined to matters in List 1 and 3 of the 7th schedule because the executive power is co-extensive with the legislative power. The President is competent to make the reference under Article 143(1) at any stage, where the President is satisfied that the question is likely to arise. It is on the President what questions should be referred to and if he does not have any serious doubt on any incidental questions then it is not for anybody else to contend that they have doubts or the President shall ask on their behalf. The Supreme Court made the position very clear that the President is the sole referring authority and the court has to confine only to the referred questions and not beyond it.

These norms was created by the Supreme Court in The President Poll Case[12]by rejecting the plea of interested parties which objected to the acceptance of the reference on the grounds of incomplete, inadequate and mala-fide reference. Ray, C.J. observed that “Under Article 143(1) we accept the statements of fact set out in the reference. The truth or otherwise of the facts cannot be enquired or gone into nor can this court go into the questions of bonafides or otherwise of the authority making the reference”. The Supreme Court can refuse to entertain the reference if it has to deal with purely abstract, hypothetical or political questions, but till now no reference has been rejected so far on these grounds.[13]

Article 143 confers advisory jurisdiction on the Supreme Court but it doesn’t lay any procedure except the words which have been stated “after such hearing as it thinks fit”. So it can be pointed out that the Supreme Court has adopted an effective procedure in hearing the reference. Thus, in the matter of procedure a reference is also most approximated to a judicial proceeding and determination of the questions referred to it, even the Supreme Court has made rules laying down the procedure of hearing references under Supreme Court Practice and Procedure.

In a landmark judgement in Ismail Faruqui v. Union of India[14], 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 require to be answered”.

Conclusion

The Supreme Court is having an original and appellate jurisdiction but it also provides the advisory jurisdiction. This jurisdiction has been provided under the Article 143 of our Indian Constitution. Article 143 empowers the President to make references to the Supreme Court on any matters but it cannot be said as binding on the President, till now twelve references have been made by the President. After analyzing the case laws and nature and scope of Advisory jurisdiction it may be clearly concluded that it is the power of the President and it is the same as that of the Federal Court system in our country and same power is provided to the Supreme Court but with conditions. Presidential references have always been made only when the issues have become clarified and crystallized by discussion amongst the general public and it has actually been possible for the courts to express an opinion.

Questions

  1. How the Concept of advisory jurisdiction came?
  2. Is it completely the same as that of Section 213 of Government of India Act, 1935?
  3. Is there any procedure to use Article 143 of our Constitution?
  4. Is the President bound to the opinion given by the Supreme Court?
  5. Can a question be evaluated beyond what is prescribed by the President?

References


[1] GovernorCharles Evans Hughes statement

[2] The Constitution of India,1949

[3] Article 143 of The Constitution of India,1949

[4] Section 4 of Judicial Committee Act, 1833

[5] Section 213 of Government of India Act, 1935

[6] Section 213 of Government of India Act, 1935

[7] AIR. 1943 F.C. 13.

[8] Report of the Ad Hoc Committee on The Supreme Court, May 21, 1947

[9] Constituent Assembly Debates, (1949) vol. VII, 27th may p 387

[10] , Shri, T.T. Krishnamachari member of Assembly

[11] AIR. 1965 S.C. 745 at 756

[12] (1974) 2 S.C.C. 33

[13] Ibid., at 55

[14] (1994) 6 SCC 360

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