Supreme Court and advisory jurisdiction

Time of India

23-05-2025

Vijay Gokhale is a lawyer and former investment banker. He has cumulative experience of more than 25 years in the financial services industry spanning public sector, private sector and MNCc. He is engaged in financial literacy and investor welfare initiatives. His areas of interest include matters relating to the Constitution, Civil and criminal laws, Securities Law, Financial Services, Consumer protection etc. LESS ... MORE
The Supreme Court, while deciding a petition filed by the Tamil Nadu government in April 2025, has fixed a time frame for withholding assent by the governor to a bill passed by the Legislative Assembly, reserving it for the President's consideration, giving assent to a bill after it's reconsideration by the house and for the President to decide on the bill before him. The judgment has generated a debate on the limits of judicial intervention in the domain of the Executive and the equilibrium to be maintained between the jurisdictions of the Executive and the Judiciary in constitutional matters.
President Droupadi Murmu has now sought the Supreme Court's opinion on a total of fourteen points exercising her powers under Article 143 of the Constitution. This is the first time such an opinion has been sought in Prime Minister Narendra Modi's eleven-year tenure as Prime Minister.
Whenever the President feels that a question of law or fact has arisen or is likely to arise, which is of such nature and public importance that it is expedient to obtain the opinion of the supreme Court upon it, the President may refer the question to the Court for consideration under Article 143(1) and the Court may after such hearing, as it thinks fit, report its opinion to the President. This is called the advisory jurisdiction of the Supreme Court. This provision has its origin in Section 213(1) of the Government of India Act, 1935. The provision is not part of the judicial administration but is part of the advisory machinery created to assist the President.
Since under Article 74(1) the President acts on the aid and advice of the Council of ministers although technically it is the President who seeks the opinion, it is in fact the Union Council of Minister which seeks it. But under Article 74(2) the Court shall not inquire whether the council indeed gave any advice and if so what. In the event, the President seeks such an opinion without the advice of the council, it will be a violation of the Constitution and the President would face impeachment under Article 61 of the constitution.
Generally, the Supreme Court answers questions of law and fact which arise in the matters before it. However, Article 143 confers on the Supreme Court a special advisory jurisdiction to give its opinion on questions not related to the matters pending before it. Article 145(3) requires a Constitution Bench of at least five judges to be constituted to consider the matter referred by the President.
Whenever such advice is sought, it is the duty of the court to consider the matter referred and give its report (opinion) to the President. The Supreme Court has opined in Keshav Sing (opinion) that because of the wording of Article 143(1) (the court may…report to the president its opinion thereon), it is not binding on the court to give such advice and the court can refuse to give such advice by providing strong, compelling and concise reasons. The court can also refuse to give advice on a matter which depends on the expert evidence or is of a political nature, stating that it is not competent to give opinion on such matter. Generally, the Supreme Court gives advice on all petitions. Out of at least 15 matters referred by President since 1950, the court has returned only one matter without an answer. That too on a technical ground.
The President may seek advice on a point of law on which the Court has not ruled (in other words it is not res judicata) The Court does not consider whether the petition is made with a dishonest intent or does not check the truthfulness of the content of the reference.
In Natural Resources Allocation Special Reference No. 1 of 2012, the Court has opined that a reference should not be returned unanswered on the basis of the form or pattern alone. It requires appropriate analysis, understanding and appreciation of content or issue on which opinion of Supreme Court is sought by President, keeping in view constitutional responsibility, juridical propriety and judicial discretion. Reference should not be vague, general or undefined. It is only when questions become unspecific and incomprehensible that risk of returning reference unanswered arises.
In its 1991 opinion on the Cauvery Water Disputes Tribunal, the Supreme Court clarified that the executive cannot, under the garb of article 143, seek to review or overturn the established judicial decisions of the Supreme Court.
This provision is used in exceptional circumstances and cannot be used as a political tool to resolve political issues. Therefore, the power vested in the Supreme Court under Article 143(1) is discretionary.
On a question whether the opinion provided by Supreme Court under article 143 is binding on other courts as per article 141 (the law declared by the Supreme court shall be binding on all courts within the territory of India) supreme court in a nine judge bench judgment of Ahmedabad St. Xavier's College Society vs. State of Gujarat has ruled that although the opinion provided to the President under Article 143 has weight, it is not binding on the Supreme Court in any subsequent cases.
The marginal note of Article 143 states 'Power of President to consult Supreme Court'. The word 'consult' undoubtedly indicates that the President is not bound to implement the opinion of the Supreme Court. Also, Article 142(1) which deals with enforcement of decrees and orders of Supreme court and orders as to discovery etc. indicates that only the decrees and orders of the Supreme Court can be implemented. Since consultative opinion is not an order or decree, the advisory opinion of the Supreme Court cannot be implemented. Although the President usually respects the opinion of the Supreme Court, the opinion given under Article 143 is not binding on the President. Sometimes the Court also takes an assurance through the Attorney General that the President will respect the opinion of the Court.
Since advisory jurisdiction is not binding as a precedent, even if the Supreme Court rules a law unconstitutional in a Section 143 opinion, the court must independently re-determine the validity of that law if a question arises in the future.
Considering the above, it will be interesting to see whether the Supreme Court considers the request of President Murmu or rejects it or says that it is a review petition under the garb of article 143 opinion, whether it expresses it's opinion on all the points if it decides to give the opinion and whether it says that some points have been decided in the Tamil Nadu petition.
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Views expressed above are the author's own.