December 9, 2022

Advisory Jurisdiction of the supreme court- Origin, Provisions and Analysis

Indian Supreme court has advisory jurisdiction under 143 of Indian Constitution, this means if president need any advice on any substantial legal question, the president may refer it to supreme court for guidance.

Provisions

Before further discussion, it is expedient to reproduce article 143 here for quick reference-

143. Power of President to consult Supreme Court

(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.

Article 131 discuss the original jurisdiction of the supreme court and in the proviso, it mentions that,

“the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute

Advisory jurisdiction of Courts in other countries

America and Australia

There is no provision similar to this in the Constitution of the United States of America or in the Commonwealth of Australia Constitution Act, 1900 and, accordingly, the American Supreme Court as well as the High Court of Australia, holding that the jurisdiction and powers of the court extend only to the decision of concrete cases coming before it, have declined to give advisory opinions to the executive or legislative branches of the State.

Canada

Under section 60 of the Canadian Supreme Court Act, 1906, the Governor-General-in-Council may refer important questions of law concerning certain matters to the Supreme Court and the Supreme Court appears to have been held bound to entertain the reference and answer the questions put to it.

Nevertheless, The Privy Council of Canada has pointed out the dangers of such advisory opinion and has, upon general principles deprecated such references. Said the Earl of Halsbury L. C. in Attorney-General for Ontario v. Hamilton Street Railway[1]:-

“They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given up on such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial Tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of the particular words when the concrete case is not before it.”

To the like effect are the observations of Lord Haldane in Attorney General for British Columbia v. Attorney-General for Canada[2]:-

“……Under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied.”

Reference may, with advantage, be also made to the following observations of Lord Sankey L. C. in In Re The Regulation and Control of Aeronautics In Canada[3]:-

“……It is undesirable that the Court should be called upon to express opinions which may affect the rights of persons not represented before it or touching matters of such a nature that its answers must be wholly ineffectual with regard to parties who are not and who cannot be brought before it – for example, foreign Government.”

Origin of Advisory Jurisdiction

In England, Section 4 of the Judicial Committee Act, 1833 provides that

“It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit and such Committee shall thereupon hear and consider the same and shall advise His Majesty thereon in manner aforesaid.”

It is to be noted that it is made obligatory for the Judicial Committee to hear and consider the matter and advise His Majesty thereon.

The Government of India Act, 1935, by section 213(1), authorised the Governor-General to consult the Federal Court, if at any time it appeared to the Governor-General that there had arisen or was likely to arise a question of law which was of such a nature and of such public importance that it was expedient to obtain the opinion of the Federal Court upon it and empowered that court, after such hearing as they thought fit, to report to the Governor-General thereon.

This provision has since been reproduced word for word, except as to the name of the court, in clause (1) of Art. 143 of our Constitution. That Article has a new clause, being clause (2) which empowers the President, notwithstanding anything in the proviso to Art. 131, to refer a dispute of the kind mentioned in the said clause 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.

Difference in first clause and second clause of section 143

While under clause (2) it is obligatory on this Court to entertain a reference and to report to the President its opinion thereon, this Court has, under clause (1), a discretion in the matter and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it.

Unique advisory jurisdiction

In view of the language used in section 213(1), on which Art. 143(1) of our Constitution is based, and having regard to the difference in the language employed in cls. (1) and (2) of our Art. 143 just alluded to, the scope of a reference made under Art. 143(1) is obviously different from that of a reference under section 4 of the Judicial Committee Act, 1833 and section 60 of the Canadian Supreme Court Act, 1906, and this Court, under Art. 143(1), has a discretion in the matter.

Reference made by Governor-General under Section 213

There have been all told four references by the Governor-General under section 213(1) of the Government of India Act, 1935, and in two of them some of the Judges of the Federal Court have made observations on the ambit and scope of such a reference.

Thus in In re Allocation of Lands and Buildings[4], Gwyer C.J. said :-

“On considering the papers submitted with the case, we felt some doubt whether any useful purpose would be served by the giving of an opinion under section 213 of the Act. The terms of that section do not impose an obligation on the Court, though we should always be unwilling to decline to accept a Reference, except for good reason; and two difficulties presented themselves.

First, it seemed that questions of title might sooner or later be involved, if the Government whose contentions found favour with the Court desired, as the papers show might be the case, to dispose of some of the lands in question to private individuals, and plainly no advisory Opinion under section 213 would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under section 204(1) of the Act by one Government against the other.”

The list of reference made by President

  1. In re the Delhi Law Act, AIR 1951 SC 332
  2. In re the Kerala Education Bill, AIR 1958 SC 956
  3. In re New India Motors Ltd. v. Morris, AIR 1960 SC 875
  4. In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845
  5. In re the Sea Customs Act, AIR 1963 SC 1760
  6. In re Keshav Sing’s Case, AIR 1965 SC 745
  7. In re Presidential Poll, AIR 1974 SC 1682
  8. In re Special Courts Bill, AIR 1979 SC 478
  9. Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522
  10. Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642
  11. Re on Principles and Procedure regarding appointment of Supreme Court and High Court Judges, AIR 1999 SC 1
  12. Gujarat Assembly Election Matter, AIR 2003 SC 87
  13. Punjab Termination of Agreements Act in 2004
  14. 2G spectrum case verdict and the mandatory auctioning of natural resources across all sectors in 2012

Moble charge


[1] ([1903] A.C. 524, 529)

[2] ([1914] A.C. 153, 162)

[3] 1932] A.C. 54, 66)

[4] ([1943] F.C.R. 20, 22)