Advisory jurisdiction

Advisory Jurisdiction

The Supreme Court of India (SCI) has been granted original, appellate and advisory jurisdiction. It has advisory jurisdiction in matters which are solely referred to it by the President. The SCI may advise the President on the referred matters which are generally associated with public importance. Moreover, the President refers a dispute to the SCI for its opinion, notwithstanding anything in the proviso to Article 131, and the court reports its decision to the President.

A similar provision existed under Section 213 of the Government of India Act, 1935 over the Federal Court of India. The court was supposed to report its opinion in response to the question of law referred to it by the Governor General. The question was to be of public importance that required Federal Court’s opinion. At that point of time, about four references were made under Section 213(1) of the Government of India Act, 1935. At present, Article 143 is forerunner of this provision.

Term as defined in legislation(s)

Article 143 of the Constitution of India vests the SCI with advisory jurisdiction. Article 143 provides the SCI with advisory jurisdiction in two cases: First, clause (1) of Article 143 shows that the SCI is not bound to give advisory opinion in every reference made to it. The court is allowed to refuse its opinion for compelling reasons.

Second, clause (2) of Article 143 uses the word ‘shall’ signifies that whenever a matter excluded from the jurisdiction of the SCI is referred to it, it is obligated to give an advisory opinion in that case. Article 131 provides original jurisdiction to the SCI. Article 131 contains a proviso which bars the original jurisdiction for disputes arising out of treaty, agreement, covenant, engagement or other similar instrument, the operation of which continues after the commencement of the Constitution of India. The aspect barred by Article 131 can be the subject matter of reference under Article 143(2).

Term as defined in case law(s)

Obligation on the SCI to provide its advice

In Kerala Education Bill, 1957, In re, the Supreme Court clarified that while it is obligatory for the Court to entertain a reference and provide an opinion to the President under Article 143(2), it retains discretion under clause (1) and may, in appropriate circumstances and for valid reasons, decline to express an opinion. However, in Special Courts Bill, 1978, In re, the Court further elaborated that the discretion to refuse a reference is not merely due to the distinct language of clauses (1) and (2) of Article 143—where clause (1) states that the Court “may” report its opinion, whereas clause (2) mandates that it “shall” do so—but rather, even under clause (2), the Court may justifiably return the reference unanswered if a valid reason renders the question unresolvable.

Binding on President

The marginal note of Article 143 reads “Power of President to Consult Supreme Court”. The word “consult” signifies that the President is not bound to give effect to the opinion of the Supreme Court. Article 142 which deals with the enforcement of decrees and orders of the 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 need not be enforced. In Special Reference No. 1, 1988, the Supreme Court restated its view that the President or the government is not bound by the opinion under Article 143.

Binding on the Supreme Court

The Supreme Court in Ahmedabad St. Xavier’s college Society v. State of Gujarat, held that the SCI it would be an anomalous situation if a smaller bench does not agree to the opinion of the larger bench. The smaller bench could easily overrule a decision rendered by the larger bench on the mere ground that it was an opinion rendered to the President. In this case, the case was referred to a larger bench to prevent such an anomaly.

Binding on other courts

The question of whether an opinion delivered by the Supreme Court under its advisory jurisdiction would be binding on all courts in India under Article 141 has been considered in multiple judgments.

Chief Justice Chandrachud (as he was then), while acknowledging that the matter may require a more comprehensive examination in the future, in re Special Courts Bill, 1978 observed that it would be paradoxical if a Supreme Court decision on a legal question in a dispute between private parties were to be binding on all courts nationwide, whereas an advisory opinion held no binding effect whatsoever. He added that the Court follows an elaborate procedure, involving all relevant parties and considering their arguments thoroughly. Despite this rigorous process, such an opinion does not attain binding force solely because it is issued under Article 143.

This issue again knocked the doors of SCI in Cauvery Water Disputes Tribunal, Re, where the Court opined that an advisory opinion is deserving of due weight and respect and should generally be followed. Moreover, a 9-Judge Bench in Ahmedabad St. Xavier’s College Society v. State of Gujarat, ruled that a report submitted to the President under Article 143 is not binding on the Supreme Court in subsequent cases, particularly where the infringement of rights under an analogous provision is in question, though it carries significant persuasive value.  Regarding High Courts and lower courts, the same principle applies: while the Supreme Court’s advisory opinion carries value, it does not hold precedential authority because it is not considered binding law.

President’s power to refer matters

Article 74(1) mandates the President to act in accordance with the aid and advice 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. However, the Supreme Court cannot examine the veracity of the reference: if it is made by the President or on the advice of the Council of Ministers in view of Article 74(2).

Conflict between Judgement and Opinion

When a judgement and an opinion of the Supreme Court collides, it is always the judgement which prevails. In Supreme Court Advocates-on-Record Association v Union of India, the court held that the view of collegium consisting of the Chief Justice of India and two senior-most judges would have primacy. However, this was modified in Special Ref no. 1 of 1998 and the membership of collegium system was altered. On account of this conflict, it was said that the law is declared by the Supreme Court in Second Judges case and cannot be altered through advisory opinion.

Limitations of the Advisory Jurisdiction

The advisory jurisdiction of the Supreme Court is restricted by certain limitations. The following are the essential limitations of the advisory opinion sought from the Supreme Court:

The Court has to always confine itself to the question of the President and cannot transcend beyond that question. In Kerala Education Bill, 1957, Re, the court emphasized on the existing boundaries and also the court cannot check the validity and truthfulness of the facts so mentioned in the reference..

Moreover, a question of law which has already been decided cannot be referred to the court under Article 143. The court cannot even sit in appeal or review of its own decision under Article 143. This means that the court cannot be made to advise on issues it has already decided. In the midst of this, the Court has the authority to refuse to answer purely political or socio-economic opinions which do not have constitutional significance.

International Experience

United Kingdom

The origin of the advisory jurisdiction is from the United Kingdom. In the earlier times, the practice was that the crown would consult the judicial committee before the law was enacted.

Section 4 of the Judicial Committee Act of 1833 empowered the Privy Council which was the-then highest appellate authority for all royal courts outside the United Kingdom to provide advice.

Article 143 shares a striking similarity to the authority granted to the Privy Council under the Judicial Committee Act wherein advisory opinions are not binding on the government. However, the two differ on following the precedents. While the SCI is obligated to follow the precedents, the Privy Council was not obligated to do so while issuing advisory opinions.

United States of America

The US Constitution neither provides for advisory opinion nor prohibits the issuance of it. Despite the absence of a constitutional provision on the matter, the SCOTUS has refrained from exercising the advisory jurisdiction. It provides two reasons for doing so: Firstly, the US Constitution envisages a strict separation of powers and the executive seeking advice from the judiciary amounts to breach of this foundational principle. Second, the role of judiciary is restricted to adjudication of cases and disputes, therefore, issuing advisory opinions will cause legal objections.

In Hayburn, the executive sought judicial advice, however, the Supreme Court declined this request. The court stated that providing such an advisory opinion would breach the separation of powers outlined in the Constitution. On the similar lines, when a dispute arose between the USA and France over implementation of an agreement, the judicial intervention was sought by the executive. The Supreme Court refused to offer intervention in the dispute at hand.

Canada

Canada is a former British colony because of which, its legal system is heavily influenced by English law. Due to it, Canada had an early presence of advisory opinions. The Supreme Court in 1875 formally recognized the advisory jurisdiction by the Supreme and Exchequer Courts Act. The Act was re-enacted in 1906 and the authority remained untouched. Under Section 60 of the Canadian Supreme Court Act, 1906, the Governor General can refer a question of law.

The authority of the Canadian Supreme Court is similar to the Supreme Court of India which requires it to address matters involving fact or question referred to it. Additionally, in Canada, the Governor General has the final discretion to refer the matter to the Supreme Court and this authority cannot be challenged. Unlike India, Canada treats the advisory opinion as binding decisions. Moreover, it cannot decline answering a reference, unlike Article 143 of the Indian Constitution, where it is not mandatory to advise whenever a reference is made.