Advisory Jurisdiction of the Supreme Court
Article 143 lets the President seek the Supreme Court's opinion on questions of law or fact; the resulting opinion is advisory, not binding on government.
At a glance
Article 143 lets the President seek the Supreme Court's advisory opinion on questions of law or fact of public importance.
Article 143(1) references are discretionary; Article 143(2) references (pre-Constitution treaty disputes) are obligatory.
Lets government obtain authoritative legal guidance before a dispute reaches ordinary litigation.
Advisory jurisdiction SC refers to the Supreme Court's power under Article 143 to give its opinion, at the President's request, on a question of law or fact of public importance, exercised in a consultative rather than adjudicatory capacity. It is one of three broad heads of the Court's jurisdiction, alongside original and appellate jurisdiction.
What Article 143 Provides
Article 143 has two clauses. Under clause (1), if 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 such public importance that it is expedient to obtain the Supreme Court's opinion, the President may refer the question to the Court. The Court, after such hearing as it thinks fit, reports its opinion to the President. Under clause (2), the President may refer to the Supreme Court a dispute of the kind mentioned in the proviso to Article 131 — disputes arising out of pre-Constitution treaties, agreements, or similar instruments that are otherwise excluded from the Court's original jurisdiction. In this second class of reference, the Court must, after such hearing as it thinks fit, report its opinion.
Two Classes of Reference
The Supreme Court has distinguished between the two clauses of Article 143 in an important respect: whether answering is obligatory.
- Clause (1) references use the word "may," and the Supreme Court has held it is not obligatory to answer such a reference. The Court can decline to answer a question if it considers it superfluous, unnecessary, or otherwise unsuitable for an opinion.
- Clause (2) references use the word "shall," making it obligatory on the Court to answer references relating to disputes arising from pre-Constitution treaties and agreements excluded from Article 131's original jurisdiction.
Nature of the Opinion
An opinion given under Article 143 is advisory — it is not binding on the government that sought it. Even so, the propositions of law that the Supreme Court declares while answering a reference are binding on subordinate courts, in the same way as law declared under Article 141 in any other exercise of the Court's jurisdiction. The chief value of an advisory opinion lies in giving the government an authoritative legal view — for example, on the validity of a proposed legislative measure before it is enacted, or on some other matter that may not otherwise reach the courts through ordinary litigation.
A decision of the Supreme Court on a question of law binds all courts and authorities, and the President can refer a question under Article 143 only if the Supreme Court has not already decided it. A decision that is not without jurisdiction, not per incuriam, and not in violation of natural justice or any constitutional provision operates as binding law and cannot be reopened through an Article 143 reference, since that would effectively let the Court sit in appeal over its own decision.
Illustrative Use
By 2023, the President had made fifteen references to the Supreme Court under Article 143. One notable instance was the 1998 Presidential Reference, in which the President sought the Court's opinion on doubts surrounding the consultation process for judicial appointments as laid down in the Second Judges Case (1993). More recently, in a reference made in the aftermath of the Centre for Public Interest Litigation case, the government posed eight questions for the Court's opinion; the Supreme Court considered five of them and declined to answer the remaining three, illustrating its discretion to decline questions it finds unnecessary or unsuitable.
Advisory Jurisdiction Compared with Other Heads
| Jurisdiction | Basis | Nature |
|---|---|---|
| Original | Article 131 | Disputes between the Union and States, or between States, decided as an adjudicating court |
| Appellate | Articles 132–136 | Hears appeals in constitutional, civil, and criminal matters |
| Advisory | Article 143 | Gives opinion to the President on a reference; not adjudication between parties |
Unlike the American Supreme Court, which has no advisory jurisdiction, the Indian Supreme Court's advisory role is a distinctive feature that lets the executive obtain authoritative guidance without waiting for a dispute to reach litigation.
UPSC Relevance
Prelims
- Article 143 gives the Supreme Court advisory jurisdiction; the American Supreme Court has no such jurisdiction — a frequently tested comparison.
- Clause (1) references are discretionary ("may"); clause (2) references are obligatory ("shall").
Mains
- Discuss the scope and utility of the Supreme Court's advisory jurisdiction under Article 143, with examples of Presidential references.
- Examine whether an advisory opinion under Article 143 truly lacks binding force, given that the legal propositions within it bind subordinate courts.
FAQ
Q. What is the advisory jurisdiction of the Supreme Court? A. Under Article 143, the President may refer a question of law or fact of public importance to the Supreme Court, which gives its opinion after such hearing as it considers fit.
Q. Is the Supreme Court bound to answer every Presidential reference? A. Only references under Article 143(2), concerning certain pre-Constitution treaty disputes, are obligatory to answer. References under Article 143(1) are discretionary — the Court may decline to answer.
Q. Is the Supreme Court's advisory opinion binding on the government? A. The opinion itself is not binding on the government, but the legal propositions the Court declares while giving that opinion are binding on subordinate courts.
Q. Does the American Supreme Court have advisory jurisdiction? A. No. Unlike the Indian Supreme Court, the American Supreme Court does not have advisory jurisdiction.
Q. How many Presidential references have been made under Article 143? A. Up to 2023, there had been fifteen references of this kind made by the President.
Quick Revision
- Article 143 — President may seek SC's opinion on a question of law or fact of public importance.
- Article 143(1) — discretionary reference; Court may decline to answer.
- Article 143(2) — obligatory reference on certain pre-Constitution treaty disputes excluded from Article 131.
- Opinion is advisory, not binding on government; legal propositions within it bind subordinate courts.
- Indian SC has advisory jurisdiction; American Supreme Court does not.
- Fifteen Presidential references made up to 2023.
Sources
- The Constitution of India, Article 143 — https://legislative.gov.in/constitution-of-india/
- In Re: Delhi Laws Act, 1912, AIR 1951 SC 332 — Supreme Court of India
- In Re: Kerala Education Bill, 1957 — Supreme Court of India
Further Reference
For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:
- M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
- D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
- The Constitution of India — Bare Act — the official text.
Constitutional provisions
President may refer questions of law or fact of public importance to the Supreme Court for its opinion.
Original jurisdiction of the Supreme Court in Centre-State and inter-State disputes; proviso excludes certain pre-Constitution treaty disputes, which can instead go to Article 143(2).
Law declared by the Supreme Court, including in advisory opinions, binds subordinate courts.