Article 143 of the Indian Constitution

INTRODUCTION

The Apex court of India, the Supreme Court came into existence in 1950, by replacing the existing federal courts and the privy councils. Supreme Court is the highest adjudicating authority in the nation. Originally, it is started with a chief justice and 7 judges of the Supreme Court to currently 31 judges (last updated in 2008).

The Supreme Court is having three kinds of jurisdiction vested upon it, namely Appellate jurisdiction, Original jurisdiction, and Advisory Jurisdiction. In this article, the provisions of Advisory jurisdiction will be discussed conferred upon it in Article 143 of the Indian Constitution.

ADVISORY JURISDICTION

The power of the Supreme Court is in simpler terms to advise the President in matters of public importance which has already arisen or is likely to arise. Article 143(1) talks about it, when the president faces difficulty in the question of law or fact with the present to present or future contingencies and is of such public importance, then it may refer to the court for its consideration. The scope of this article is very wide.

It is important to understand that the court is not bound to give the opinion as the wordings of the Article is clearly stating that it may after hearing if thinks fit may report to its opinion to the President.

The use of the word may at both the places paramount to the non-obligatory character of this provision. The Supreme Court may refuse to give its opinion if it good and strong reasons to do so.

Nature is not mandatory from both sides; the President may seek the opinion, and the Supreme Court may give the opinion. However, any matter which has been excluded from being dealt with by the Supreme Court under its original jurisdiction may be referred under advisory jurisdiction (Article 143(2)), and the Supreme Court shall report to the president thereon.

On what questions can an opinion be sought? There is no strict definition that limits on what grounds opinion can be sought, but it can extend beyond the function, duties and powers of the President. It can be a question of fact or a question of law. However, the Supreme Court cannot be asked to reconsider its earlier opinion or decision through this provision, and As the Supreme Court is the highest court of appeal, it cannot act as a court of appeal for its own decisions.

SOME MATTERS WHERE ADVISORY JURISDICTION IS SOUGHT

In all these years of the rule of the constitution, there have been 12 such cases where advisory jurisdiction under Article 143 was invoked.

1. In  re the Delhi laws Act[1]

The decision of the Supreme Court in the Delhi Laws Act gave guidance to the Central Executive regarding its scope and extent under the Delhi Laws Act. It was to avoid embarrassment to the central government.

1. In re the Kerala Education Bill[2]

The opinion was sought on the constitutional validity of certain provisions of the Kerala Education Bill. This is a landmark case with respect to Article 143(1) as the Supreme Court

1. Any question of law which is likely to arise will not fall under the ambit of this provision (As Kerala education bill was yet to be enacted).
2. The questions which arose the constitutional validity point, where not the one referred to the court, and on a reference being incomplete, the court rejected the contention.
3. In re berubari[3]

This was with respect to the Indo-Pak boundary agreement between the Prime Ministers of India and Pakistan. If opinion would not have been sought and the agreement would have been enacted as it is, then would have been declared unconstitutional.

1. In re the Sea Customs Act[4]

The opinion was sought with respect to the Sea Customs Act, 1878 and some of its provisions. The court clarified the relationship between center and State in this case.

1. In the case of Keshav Singh[5]

It was about a deadlock between the legislature of U.P and the Allahabad High Court, which was regarding the legislative power to commit a person for its contempt. In this case, the clarity of May and shall was given and understood. The obligatory and mandatory nature was discussed.

1. In re Presidential poll[6]

Whether the election of the president could be held in the absence of the State elected Assembly? This was the reference sought from the Supreme Court. The Central government believed it could be done but faced protests in and out of the parliament.

1. In re the Special Courts Bill[7]

Several questions with respect to maintainability were raised and answered in this case. It reiterated the fact that the bill, which is yet to become a bill, it hypothetical and speculative. And many other such contentions were clarified by the Supreme Court.

1. Re in the matter of Cauvery water disputes tribunal[8]

Whether tribunal under the Inter-State Water Dispute Act has the power to grant interim relief to parties or not? Was the main question for reference.

1. Re in the matter of Ram Janmabhoomi[9]

Whether a Hindu temple or religious structure existed at a particular place at Ayodhya existed prior to construction of the Ram Janma Bhumi- Babri Masjid Dispute

1. Gujarat Assembly Election Matter[10]

The question of the premature dissolution of the Gujarat Legislative Assembly was put to reference. It was about the time frame within which election to the assembly must be held.

1. Reference on the appointment of Supreme Court or High court judges[11]

Nine questions were referred to the Supreme Court mainly in relation to three points: Consultation between the Chief Justice of India and other judges for the appointment of Supreme Court and High Court Judges, transfer of high court judges, seniority for appointment to Supreme Court.

1. In re the Gujarat gas Act[12]

In this case, reference was sought with respect to Gujarat Gas (Regulation of transmission, Supply, and Distribution) Act, 2001. And three important questions were raised for reference pertaining to the Act.

[1] AIR 1951 SC 332

[2][2] AIR 1958 SC 996

[3] AIR 1960 SC 845

[4] AIR 1963 SC 1760

[5] AIR 1965 SC 745

[6] AIR 1974 SC 1682

[7] AIR 1979 SC 478

[8] AIR 1992 SC 522

[9] 1993 1 SCC 642

[10] 2002 8 SCC 237

[11] AIR 1999 SC 1

[12] AIR 2004 SC 2657