Article 143 confers advisory jurisdiction on the Supreme Court and provides for the power of President to consult the Supreme Court; it says that if it appears to the President that a question of law or fact has arisen, or can arise in future which is of public importance and it is beneficial to obtain the opinion of the Supreme Court, he may refer the question for consideration and the Court may, after such hearing report to the President its opinion.1 Further, 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.2
On the question that whether opinion of Supreme Court under advisory jurisdiction will be binding on all the Courts in India under Article 141, Chandrachud, C.J. though held that the question may have to be considered more fully on a future occasion, however opined that it would be strange that a decision given by the Supreme Court on a question of law in a dispute between two private parties should be binding on all courts in the country, but the advisory opinion should bind no one at all.3This issue was again raised in Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2) ,wherein , it was opined that the advisory opinion is entitled to due weight and respect and normally it will be followed. Further, a 9-Judge Bench in the Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717 held that a report which may be made to the President in a reference under Article 143 is not binding on the Supreme Court in any subsequent matter wherein, in a concrete case the infringement of the rights under any analogous provision may be called in question, though it is entitled to great weight.
Article 74(1) mandates the President to act in accordance with the aid and advise of his council of ministers. Therefore, though the reference may go in the name of the President , in reality, the reference is by the council of ministers. But the Supreme Court cannot verify or examine as to whether the reference is by the President himself or on the advise of the council of ministers in view of the constitutional bar contained in Article 74(2).
But if the President consults the Supreme Court under Article 143 in the absence of an advise from the council of ministers, he will be committing a violation of the Constitution for which he may be impeached4.
The Supreme Court is well within the jurisdiction to answer/advice the President in a Reference made under Article 143(1) if the questions referred are likely to arise in future of such questions are of public importance or there is no decision of the Supreme Court which has already decided the question referred5
In Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012)10 SCC 1, it was held that, the use of the word “doubt” in reference is not required for maintainability thereof. Reference is not to be returned unanswered on ground of form or pattern alone. It requires appropriate analysis, understanding and appreciation of content or issue on which opinion of Supreme Court is sought by President, keeping in view constitutional responsibility, juridical propriety and judicial discretion. Reference should not be vague, general or undefined. It is only when questions become unspecific and incomprehensible that risk of returning reference unanswered arises.
Is the Supreme Court bound to answer the reference?
The only discretion the Supreme Court has is either to answer the reference or respectfully decline to send a report to the President6
In Kerala Education Bill, 1957, In re, 1959 SCR 995 , the Court opined that it is obligatory on the Supreme Court to entertain a reference and to report to the President it’s opinion if the reference is under article 143(2), but under clause (1), the Court has a discretion and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it.
But in Special Courts Bill, 1978, In re, (1979) 1 SCC 380 , the Court opined that the right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in clauses (1) and (2) of Article 143, in the sense that clause (1) provides that the court “may” report to the President its opinion on the question referred to it, while clause (2) provides that the court “shall” report to the President its opinion on the question. Even in matters arising under clause (2), though that question does not arise in this reference, the court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered.
Is the President bound by the advisory opinion of Supreme Court?
The marginal note of Article 143 reads “Power of President to Consult Supreme Court”. The word “consult” shows beyond doubt that the President is not bound to give effect to the opinion. Further, an opinion cannot be enforced or executed. Also, Article 142 which deals with the enforcement of decrees and orders of Supreme Court, and under clause (1) it states that only decrees and orders of the Supreme Court can be enforced. Since an opinion is neither a decree nor an order, it cannot be enforced.7
Article 143(1): Advisory and consultative Jurisdiction
The Supreme Court generally answers the questions of law or fact when raised by the parties, however, this Article confers a specific jurisdiction called the consultative or advisory jurisdiction, on the Supreme Court, to give its opinion on questions which are unconnected to some pending case.
Further, the advisory opinion of the Supreme Court under Article 143 is not binding on the President8, though the President normally honours it, and sometimes the Court also takes the undertaking through the Attorney general that the President will honour it9
The Supreme Court can refuse to express its advisory opinion if it is satisfied that it should not express its opinion, having regard to other relevant facts and circumstances, such as if the questions are purely socio-economic or political questions and have no relation to the Constitution 10
Some of the references made under Article 143(1) are as follows:
- Delhi Laws Act, 1912, In Re, 1951 SCC 568
- Kerala Education Bill, 1957, In re, 1959 SCR 995
- Berubari Union (I), In re, (1960) 3 SCR 250
- Sea Customs Act, S. 20(2), In re, (1964) 3 SCR 787
- Powers, Privileges and Immunities of State Legislatures, In re, (1965) 1 SCR 413
- Presidential Poll, In re, (1974) 2 SCC 33
- Special Courts Bill, 1978, In re, (1979) 1 SCC 380
- Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2)
- Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter), (1993) 1 SCC 642
- Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739
- Special Reference No. 1 of 2001, In re, (2004) 4 SCC 489
- Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237
- Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1
- Punjab Termination of Agreement Act, 2004, In re, (2017) 1 SCC 121
- Jammu and Kashmir Resettlement Act in 1982
In Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter), (1993) 1 SCC 642 the question of fact referred was “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi – Babri Majid?” Therefore, this is the only reference wherein the President referred a question of fact to the Supreme Court under Article 143(1).
Frequently Asked Questions:
Q. What is the meaning of Article 143?
A. Article 143 confers power on the President to consult the Supreme Court and seek its opinion on question of law or fact, which is of such nature and of such importance that it is expedient to obtain Supreme Court’s opinion.
Q. How many times has the President used Article 143?
A. The President has till date used Article 143 only 15 times.
1. Constitution of India, Article 143, cl 1
2. Constitution of India, Article 143, cl 2
3. In re Special Courts Bill, 1978,(1979) 1 SCC 380.
4. Supreme Court’s Advisory Jurisdiction Under Article 143, 42 JILI (2000) 458
5. Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237.
6. Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012)10 SCC 1.
7. Supreme Court’s Advisory Jurisdiction Under Article 143, 42 JILI (2000) 458
8. Levy of Estate Duty, In re, 1944 SCC OnLine FC 16
9. Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739
10. Ad hoc Committee Report on the Supreme Court