What is Advisory Jurisdiction of Supreme Court?
Whenever the President feels that a question of law or fact has arisen or is likely to arise, which is of such nature and public importance that it is expedient to obtain the opinion of the supreme Court upon it, the President may refer the question to the Court for consideration under Article 143(1) and the Court may after such hearing, as it thinks fit, report its opinion to the President. This is called the advisory jurisdiction of the Supreme Court.
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This provision has its origin in Section 213(1) of the Government of India Act, 1935. The provision is not part of the judicial administration but is part of the advisory machinery created to assist the President.
It is a power that the President has invoked on at least 15 occasions since 1950.
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Article 145(3) requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion.
What type of matters can be referred by the President to the Supreme Court for its advice?
The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in two categories of matters:
(a) On any question of law or fact of public importance which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments. These include treaties, covenants, etc. between the Central Government and the formerly princely states during 1947 to 1950.
In the first case, the Supreme Court may tender or may refuse to tender its opinion to the president. But, in the second case, the Supreme Court ‘must’ tender its opinion to the president.
Is the opinion expressed by the Supreme Court under its Advisory Jurisdiction binding on the President?
The opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it.
Can the Supreme Court decline to answer a presidential reference?
Article 143(1) states the court “may, after such hearing as it thinks fit, report to the President its opinion thereon”. The word ‘may’ indicates that it is the court’s prerogative to answer the reference. The Supreme Court has so far returned at least two references without answering.
(1) The SC did not answer a 1982 reference made by President Giani Zail Singh on the constitutionality of a proposed law that sought to regulate the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947 and May 14, 1954 to Jammu and Kashmir.
(2) In 1993, then President Shankar Dayal Sharma asked the SC “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid…in the area on which the structure stood.”
The SC unanimously refused to answer this as a civil suit on the dispute was already pending before the courts. Justices AM Ahmedi and S P Bharucha declined to answer also on the grounds that the reference was against secularism, and hence unconstitutional. The judges also expressed apprehension that the government could use the SC opinion as a springboard to politically negotiate the issue.
