An Analysis Of Article 143 Of The Constitution Of India
We are all aware that in the Pyramid of Courts of Justice in India, the Supreme
Court is the Apex Court of the Country and is also considered the highest Court
of appeal under Article 124 of our Constitution. As we are aware, the Supreme
Court of India came into existence, when our constitution was formed viz: 26th
January 1950 and is conferred with the Original, Appellate and Advisory
Jurisdiction. Advisory jurisdiction is basically giving a non-binding opinion on
a subject or a question of law referred to a Court.
Understanding the advisory jurisdiction of the Supreme Court:
Under Article 143 of the Constitution of India, 1950 the President of India may
obtain the opinion of the Supreme Court of India on any question or fact of law
which may be of public importance and may need any advice from the Supreme
Court. This process is also known as a Presidential Reference. It should be
understood that the advisory jurisdiction is different from the decision making
power of the Court, which has been its task from time immemorial.
under Clause (1), the Supreme Court may assess the matter and decide whether it
wants to give the opinion on the same or not. Therefore, the Supreme Court has
the power to refuse giving an opinion as well. Likewise it is up to the
president to accept or reject the advice of the Supreme Court but out of
courtesy almost every time the Advice is accepted. The matter is generally
referred to a 5 Bench judge, who in turn have to submit a detailed report.
judgments passed under the advisory jurisdiction do not become law under as
mandated under Article 141 of the Constitution of India, as Such references
mainly comprise of socio-economic or political questions and have nothing to do
with the Rule of Law.
We can examine a few cases to understand this advisory jurisdiction Ref: Keshav
Singh v. Speaker of the Legislative Assembly, in this case there was a complete
deadlock between the State legislature of the Uttar Pradesh and the Allahabad
High Court. The Petitioner was arrested for the charge of contempt of the Uttar
Pradesh State Assembly. Therefore, he petitioned the Allahabad High Court and
was granted bail by the Division Bench of the said Court.
This led to the
assembly issuing summons against the judges and the advocates, who in turn filed
a petition restraining the legislative assembly from issuing a warrant against
the judges in specific. In this deadlock situation the President referred the
matter to the Supreme Court, who advised that judges, who entertain a petition
challenging any order of penalty imposed of the legislature on the petitioner
for its contempt were not in contempt of the said legislature and hence the
legal proceedings against them cannot be initiated.
Nevertheless, as we have seen from the analysis above, the said order of
judgments are not binding on either party and are basically sought when clarity
is needed on a particular issue. Hence, if the Court feels that the opinion
sought for is against the basic tenants of the Constitution, it can chose to
decline the same, for eg: the Babri Masjid case referred to the Supreme Court
for advisory purpose was turned down as being against the basic doctrine of
secularism mentioned in our Preamble of the Constitution Ref: Ismail Faruqui
Vs Union Of India. Therefore, this jurisdiction is important in an
Independent country, where this acts as a channel of co-operation between the
various wings of the governing machinery.
Role of the High Court
A similar power vests with High Courts who can advise in case the State
government or if there is a reference from the Governor of the State. As it is
in the case of the Apex Court where the advice is not binding, similarly, the
advice given by the High Court is not binding on the authority that sought it.
The High court remains to be the apex court in the State judicial system which
is followed by a system of subordinate courts. However, they come below the
Supreme Court in Indian judicial hierarchy. Articles 214 to 231 of the Indian
Constitution deal with the composition and the powers as well as the
jurisdictions of the High Courts of India. These High Courts have a large
variety of and very varied jurisdiction.
Detriments of the Advisory jurisdiction
The various advisory estimations are condemned because they are notional,
theoretical, abstract and very unpredictable, as there are no contesting
parties. They are more of just academic considerations and sometimes involve
even political controversies which can be dangerous, as we are a secular
Therefore, this jurisdiction must be used very cautiously and when
facts are totally clear, otherwise it is quite possible that this may create a
political controversy. Therefore, this power is to be used very judiciously
keeping in mind that very delicate and political issues are not referred. It is
better to refer matters involving state questions or problems and should be done
only at the ascendency of the State Government.
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