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Advisory Jurisdiction Of Supreme Court

Article 143[1] of the Indian Constitution presents some special features of exchange between the executive and Supreme Court of India (hereinafter, the Apex Court). The President of India, in discharge of constitutional duties may require significant constitutional assistance. The consultation which he may engage in is to obtain advice on a pertinent issue which has a status of public importance. This, however, is not a process of adjudication of disputes between parties and hence, is not binding.

Some features of Article 143:

  1. The President of India is the ultimate authority in regard to formulation of question fit in his opinion to be placed before the Court.
     
  2. Court will answer the question as to the facts stated in order of reference and will have no concern about the correctness of facts.
     
  3. The President merely desires to inform his own mind on the relevant question of law and facts as to aid him in the course of his own action under the constitution.
     
  4. As per Article 143(1) the court retains the discretion to decline to express any opinion. While under clause (2), an obligation is cast upon the Supreme Court to entertain a reference and report its opinion to the President.
     
  5. Court may refuse to answer when it finds that the question would involve presentation and examination of expert evidence.
     
  6. The Court may also return the reference by pointing out the impediments in answering it or when the court comes to a conclusion that it would be unadvisable to express its advisory opinion.

Relevance of this provision:

This Article confers upon the President the power to consult the Supreme Court upon any question of public importance as he may think fit, whether of law or fact, and whether or not such question relates to the function and duties of the President. However, the President can raise only a question of law of public importance when it has not been decided by the Apex court.

Binding nature of the opinion under Article 143:

The advisory opinion given under Article 143 is not a judgement and doesn't accordingly, furnish a good root of title which might spring from a Supreme Court judgment. Nevertheless, so far all other courts are concerned they would be bound by the observation of the Supreme Court even though it has been given under its advisory jurisdiction.[2]

Procedure under Article 143:

  1. Order XLII of the Supreme Court Rules, 2013 deal with the procedure to be followed by the Supreme Court in exercise of its advisory jurisdiction under Article 143.
     
  2. Rule 1: On receipt of the Reference, the registrar of the apex court shall give notice to the Attorney-General of India to appear before the Court. Court may on that direct notice to be served on such parties as may be desirable.
     
  3. Rule 2: Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect, to the date of the hearing.
     
  4. Rule 3: Subject to the provisions of this Order, on a reference under article 143 of the Constitution, the Court shall follow as nearly as may be the same procedure as is followed in proceedings before the Court in the exercise of its original jurisdiction, but with such variations as may appear to the Court to be appropriate and as the Court may direct.
     
  5. Rule 4: After the hearing of the reference under article 143 of the Constitution the Registrar shall transmit to the President the report of the Court thereon.
     
  6. Rule 5: The Court may make such order as it thinks fit as to the costs of all parties served with notice under these rules and appearing at the hearing of the reference under article 143 of the Constitution.

End-Notes:
  1. 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.
  2. In re The Special Courts Bill, AIR 1979 SC 478.

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