Provision
Article 143 of the Constitution reads as follows:
143(1) If at any time 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 of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) 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 thereon.
Question that may be referred for Consideration
Article 143(1) is couched in broad terms which provide that any question of law or fact may be referred by the President for the consideration of the Supreme Court if it appears to him that such a question has arisen or is likely to arise and if the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it.
It is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent to the President to make a reference under Article 143(1) at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise. The satisfaction whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, is a matter essentially for the President to decide.
The plain duty and function of the Supreme Court under Article 143(1) of the Constitution is to consider the question on which the President has made the reference and report to the President its opinion, provided of course the question is capable of being pronounced upon and falls within the power of the Court to decide.
Return of the Reference
If, by reason of the manner in which the question is framed or for any other appropriate reason the Court considers it not proper or possible to answer the question it would be entitled to return the reference by pointing out the impediments in answering it.
The right of Supreme 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.
The framing of question
On the framing of questions, the Supreme court in ‘Re the Special Court Bill 1978’, said that,
“We hope that in future, whenever a reference is made to this Court under Article 143 of the Constitution, care will be taken to frame specific questions for the opinion of the Court. Fortunately, it has been possible in the instant reference to consider specific question as being comprehended within the terms of the reference but the risk that a vague and general reference may be returned unanswered is real and ought to engage the attention of those whose duty it is to frame the reference.
Were the Bill not as short as it is, it would have been difficult to infuse into the reference the comprehension of the two points mentioned by us above and which we propose to decide. A long Bill would have presented to us a rambling task in the absence of reference on specific points, rendering it impossible to formulate succinctly the nature of constitutional challenge to the provisions of the Bill.”
Can Supreme Court review legislation under Advisory Jurisdiction?
Our federal or quasi-federal Constitution provides by a copious written instrument for the setting up of a judiciary at the Union and State levels. Article 124, which occurs in Chapter IV of the Constitution called “The Union Judiciary”, provides for the establishment of the Supreme Court of India. Its powers and functions are defined in Article 32(2), Article 129, Articles 131 to 140 and in Article 143 of the Constitution. Likewise, Article 214 provides subject to Article 231, for the establishment of a High Court for each State.
Article 226 confers powers on the High Courts to issue certain writs while Article 227 confers upon them the power of superintendence over all courts subordinate to their appellate jurisdiction. These provisions show that the power of reviewing the constitutional validity of legislations is vested in the Supreme Court and the High Courts and in no other body. The British Parliament, being supreme, no question can arise in England as regards the validity of laws passed by it.
The position under our Constitution is fundamentally different because, the validity of laws passed by the Indian Legislatures has to be tested having regard to the scheme of distribution of legislative powers and on the anvil of other constitutional limitations like those contained in Article 13 of our Constitution.
The right of the Indian judiciary to pronounce a legislation void if it conflicts with the Constitution is not merely a tacit assumption but is an express avowal of our Constitution. The principle is firmly and wisely embedded in our Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while, interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts.
Does review of legislation by Supreme Court encroaches the jurisdiction of the Parliament?
The court said in ‘Re Special court Bill’,
“In the first place, in dealing with the reference we are not withdrawing any matter from the seizing of the Parliament, much less “lifting” the Bill from the Lok Sabha, as was argued by one of the counsel. The President has made a reference to this Court in exercise of the powers conferred upon him by Article 143(1) and we are under a constitutional obligation to consider the reference and report thereon to the President as best as we may.
Secondly, it is difficult to appreciate which particular function or privilege of the Parliament is wittingly or unwittingly, encroached upon by our consideration of the constitutional validity of the Bill. As we have just said, the question whether the provisions of the Bill suffer from any constitutional invalidity falls within the legitimate domain of the courts to decide. Parliament can undoubtedly discuss and debate that question while the Bill is on the anvil but the ultimate decision on the validity of a law has to be of the court and not of the Parliament.
Therefore, we will not be encroaching upon any parliamentary privilege if we pronounce upon the validity of the Bill. We must also mention, that though it was argued that the privileges of the Parliament are being encroached upon, none of the counsel was able to specify which particular parliamentary privilege was involved in our consideration of the reference.
Reference
Re- The special court bill 1978