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Time of India
23-05-2025
- Business
- Time of India
Supreme Court and advisory jurisdiction
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. Facebook Twitter Linkedin Email Disclaimer Views expressed above are the author's own.
The Hindu
19-05-2025
- Politics
- The Hindu
What is a Presidential reference?
The story so far: President Droupadi Murmu, has made a reference to the Supreme Court, under Article 143 of the Constitution, on certain questions of law and has sought its opinion on those questions. What is the historical context? The advisory jurisdiction of the Supreme Court under Article 143 is a relic of the Government of India Act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion. A similar provision is available in the Canadian constitution. This mechanism allows the Supreme Court of Canada to offer opinions on legal questions referred to it by the federal or provincial governments. The U.S. Supreme Court on the other hand has consistently declined to provide any advisory opinion to the executive as it would violate the strict separation of powers envisaged in its constitution. What are the provisions? As per Article 143, the President may refer any question of law or fact of public importance to the Supreme Court for its opinion. The President makes such a reference based on the advice of the Union council of ministers. Article 145 of the Constitution provides that any such reference shall be heard by a bench of minimum five judges. The Supreme Court may provide its opinion after such hearing as it thinks fit. The opinion is legally not binding on the President, and does not hold a precedential value for the courts to follow in subsequent cases. However, it carries a strong persuasive value and is usually followed by the executive and the courts. What were past instances? There have been around fifteen references made since 1950 before the current reference. Some of the landmark opinions from such references is summarised here. The first reference was made in the Delhi Laws Act case (1951) which laid down the contours of 'delegated legislation', through which the legislature could delegate legislative powers to the executive for effective implementation of any law. The reference in the Kerala Education Bill (1958) resulted in the court laying down the principle of harmonious construction between Fundamental Rights and Directive Principles of State Policy as well as interpretation of protection given to minority educational institutions under Article 30. In the Berubari case (1960), the court opined that ceding or acquisition of territory by India would need a constitutional amendment under Article 368. In the Keshav Singh case (1965), the court interpreted the powers and privileges of the legislature. In the Presidential poll case (1974), the court opined that Presidential elections should be held notwithstanding vacancies in the electoral college due to dissolution of State assemblies. The opinion provided in the Special Courts Bill (1978) was significant on many counts. It provided that the court may decline to answer a reference; that the questions referred must be specific and not vague; and that the court, while answering a reference, should not encroach upon the functions and privileges of Parliament. The Third Judges case reference (1998) laid down detailed guidelines for the collegium system with respect to the appointment of judges to the higher judiciary. It is not obligatory for the Supreme Court to render its opinion. However, out of the references made till date, the court has declined to provide its opinion for only one reference in 1993 with respect to the Ram Janmabhoomi case. What is the current reference? The current reference is a result of a recent Supreme Court judgment that had specified timelines for Governors and the President to act on Bills passed by State legislatures. The court had also held that decisions by Governors and the President on such Bills are subject to judicial review. The present reference has raised 14 questions, primarily surrounding the interpretation of Articles 200 and 201, for the court's opinion. The government has raised questions regarding the authority of the courts to prescribe timelines when they are not specified in the Constitution. It has questioned whether the actions of Governors and the President can be made justiciable at a stage prior to the enactment of a Bill into a law. The reference also seeks opinion on the extent of powers that can be exercised by the Supreme Court under Article 142. Political differences between the Union government and Opposition-ruled State governments have been the principal reason for this conflict. The Supreme Court had adopted the timelines prescribed for the President in the Office Memorandum of the Home Ministry while passing its judgment. In the Cauvery dispute reference (1992), the court had opined that it cannot sit on appeal over prior judgments in its advisory capacity. However, an authoritative opinion on this reference will hopefully settle the issues surrounding these constitutional provisions that are crucial for the smooth functioning of our democracy and federalism. Rangarajan R is a former IAS officer and author of 'Courseware on Polity Simplified'. Views expressed are personal.
The Hindu
06-05-2025
- Politics
- The Hindu
The implications of caste enumeration
Numbers are the basis of governance; without them, the state loses confidence. In government offices, one may see that every item — electrical panels, fans, chairs — is meticulously numbered and logged, forming the foundation of administrative records. Thus, governments categorise and quantify all things. As Arjun Appadurai said, every commodity has its own social and political life — this principle also applies to the census of humankind. Since the emergence of the modern state in India, populations have been enumerated. The first colonial Census conducted in 1872 generated statistical data, allowing the British to control India and regulate every aspect of Indian life. While the Census was seen as an administrative enumeration, a statistical activity more than a political act of a reorganisation of groups, the introduction of the caste Census by H.H. Risley made the Census into a political instrument in a way it had never been used before. Risley had a dramatic influence on the rise of caste organisations and the exploding production of literature about the caste system from all over the subcontinent. Caste count pre-Independence In the late 19th century, upper-caste Indian elites sought political reforms and representation from the British. The Census figures enabled the colonial government to reshape India's complex social and cultural fabric through revenue taxation, education, and new opportunities generated in universities, public services and of course legislative bodies. This eventually led to the creation of a supporter base among upper-caste Indian elites for the British. However, with time, subaltern communities also began seeking access to education and political representation. Dr. B.R. Ambedkar's emergence after the 1930s, challenged upper-caste hegemony, creating space for Dalits or the Backward Classes, as they were known then. While the Government of India Act, 1935 and the Indian Constitution brought dignity and equality to Dalits and Adivasis, thousands of Other Backward Classes (OBCs) were overlooked by the Constituent Assembly during this pivotal moment. Defining the OBC category In 1953, the Kaka Kalelkar Commission was established to identify OBC communities and propose welfare measures. In its 1955 report, the commission identified as many as 2,300 communities as OBCs. However, the report was not implemented due to vague criteria and lack of political consensus. In fact, the report received negative feedback from the then Congress Home Minister G.B. Pant, who thought that the emphasis on caste demonstrated 'the dangers of separatism' and was 'the greatest hindrance in the way of our progress toward an egalitarian society.' During this period, Dr. Ram Manohar Lohia articulated a contrarian but transformative vision — 'We should follow a new principle that merit comes from opportunity. Sixty per cent of the high opportunities of the country should go to 90% of India's population —Shudras, Harijans, backward castes of religious minorities, women, and tribals. This principle should be applied to the most competitive exams and I reject the Prime Minister's (Jawaharlal Nehru) arguments, which rest on the deceptive foundation of merit and qualifications,' as articulated in the Rammanohar Lohia Rachanawali, a compilation of the works of Ram Manohar Lohia. After Lohia's intervention, the Mandal Commission in its 1980 report recommended a 27% reservation for OBCs in central government jobs and educational institutions, noting that OBCs constitute approximately 52% of India's population, on the basis of the 1931 caste Census data. In 1990, the V.P. Singh government allowed the partial implementation of Mandal Commission reports, generating much political heat across the country. However, the ensuing debate around reservations for the backward classes also raised the issue of a lack of new and more relevant data for more accurate policymaking, giving momentum to the demand for a caste census from this period on. Incidentally, between the Kaka Kalelkar Commission and Mandal Commission, the Mungeri Lal Commission was set up by former Bihar Chief Minister Karpoori Thakur in Bihar, which also recommended reservations for the backward classes. The impact of the Mandal report The implementation of the Mandal Commission report has significantly changed the contours of OBC politics in the country, hastening the dominance of the backward castes, especially the intermediary castes. There is now not a single party in India which can oppose OBC reservations. Even in the 2024 parliamentary elections, reservation (or the perceived threat of its removal) was a key issue. Since 2014, the Bharatiya Janata Party (BJP), under the leadership of Prime Minister Narendra Modi, has been garnering strong support from OBC and Scheduled Castes within the broader Hindutva framework. To reclaim this support, regional parties have expanded their social and electoral base, and have been tirelessly demanding for a Census where caste is also enumerated. In Uttar Pradesh, the Samajwadi Party led by Akhilesh Yadav, has created a fruitful alliance with backward classes, Dalits, and minorities, by emphasising on proportional representation for castes. The party secured 37 Lok Sabha seats in the 2024 Lok Sabha elections in Uttar Pradesh. Recently, Congress leader Rahul Gandhi admitted that the party failed to prioritise OBCs and other reserved categories in the past and that they are ready to amend it. As part of the INDIA alliance's Lok Sabha election agenda, he advocated for a Census where caste is enumerated, aiming to consolidate Congress's traditional voter base while also appealing to OBC, Dalit, minorities and Adivasi constituencies. This, he said, will be like a comprehensive 'X-ray' of Indian society. While there is a vast political leadership who came through the lanes of OBC politics and have reached high positions in political parties and legislative spaces, there are fault lines in it. There is a concentration of certain communities in these spaces, especially of intermediary and extremely backward castes. The new Census, with caste enumeration, could create a window of opportunity for the inclusion of those communities who have been left behind. This Census will extend beyond OBCs, encompassing other subaltern communities and minorities. It will also bring out the number of privileged castes. It will reveal demographic compositions, and, if economic data like land ownership is included, the social roots of India's economic inequality. For smaller Scheduled Castes and OBCs lacking prominent leaders, this Census will offer a vital opportunity for visibility and advocacy, as land reforms and economic equality efforts have failed, deepening caste-based oppression and marginalisation. It will also give voice to, and more importantly, numbers of denotified and nomadic communities. An electoral agenda If one looks at the recent victory of the BJP in Haryana, Rajasthan, Delhi, Madhya Pradesh, Chhattisgarh and Uttar Pradesh, one understands how the BJP has attracted small communities to its fold. Social scientist Badri Narayan has been highlighting this phenomenon for a long time now. In Bihar, where Assembly elections are due later this year, the BJP would want to use its recent decision to conduct a caste count in the upcoming Census, along with the symbolism of honouring Karpoori Thakur with a Bharat Ratna Award, to effectively mobilise the Extremely Backward Classes (EBC). This is to bolster its own social base and improve its political standing, taking the wind out of its ally Nitish Kumar, who has been basking in the glory of carrying out the caste survey in Bihar earlier and has been the beneficiary of EBC support so far. Through the proposed caste enumeration with the Census, the BJP will try to reshape the caste realities of India and consolidate its appeal among a largely untapped voter base. It will try to cement its presence in States where it was a non-dominant player at best. Other national and regional parties will likely pursue similar strategies, but their success to find a foothold in these realigned caste realities will depend on their leadership and party organisation. Rama Shanker Singh is an independent historian and author of the book Nadi Putra: Uttar Bharat mein Nisahd aur Nadi. Sarthak Bagchi teaches in Ahmedabad University.
Indian Express
23-04-2025
- Politics
- Indian Express
Art 142: Dubbed ‘nuclear missile' by V-P Dhankhar, deployed by SC in cases from Ayodhya to Bhopal to Visakha
In the wake of the Supreme Court's ruling that set a timeline for the governors to decide on Bills cleared by state Assemblies within three months at the most, including those referred to the President, Vice-President Jagdeep Dhankhar took aim at Article 142 of the Constitution. The Article – granting the apex court the power to pass any order necessary to ensure 'complete justice' in any case pending before it – 'has become a nuclear missile against democratic forces, available to the judiciary 24×7', Dhankhar said. Declaring as illegal and erroneous the action of Tamil Nadu Governor R N Ravi in reserving 10 Bills for consideration of the President in November 2024, the Supreme Court in its April 8 order said the pieces of legislation were considered as having received assent given 'the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent'. The origins of Article 142 Invoked on numerous occasions, including several landmark judgments, Article 142 traces its roots back to Section 210 of the Government of India Act, 1935, which was passed by the British Parliament. A 1947 report submitted by an ad hoc committee of the Constituent Assembly, which framed the Constitution, observed: 'If the Supreme Court takes the place of the Privy Council, it may well be permitted to pronounce final judgments and final decrees in cases where this is possible, or to remit the matter for further inquiry to the Courts from which the appeal has been preferred, where such further inquiry is considered necessary. Provision must also be made on the lines of Section 210 of the Act of 1935 giving certain inherent powers to the Supreme Court.' The 'inherent powers' cited by the ad hoc committee were effectively a precursor to Article 142, which is meant to grant the Supreme Court powers in situations that cannot be addressed using existing provisions of the law. While Section 210 of the 1935 Act made no mention of 'complete justice', the phrase was added by the Constituent Assembly when it drafted Article 142. The Article did not see any debate in the Constituent Assembly, and it was adopted without any amendments in 1949. One of the earliest references to Article 142 was in 1958, when the Supreme Court heard a case on the publication of remarks made in the Bihar Assembly that had been expunged. The Supreme Court used the Article to interpret the Constitution and uphold the authority of Assemblies to 'regulate the publication of debates over the right to free speech'. For decades after that, Article 142 was invoked sparingly by the Supreme Court. Then, starting the 1990s, there was a considerable spike. Since 2002, there have been at least 20 instances of Article 142 being invoked every year. A study published by researchers at IIM- Ahmedabad in 2024 found there were 1,579 Supreme Court cases that referred to Article 142 or 'complete justice' between 1950 and 2023. But, only in 50 per cent of these cases, the report stated, the Court 'explicitly' used its power under the Article. In 11 per cent of the cases, the Court specifically rejected the use of Article 142. In the remaining 39 per cent of the cases, the use of Article 142 was 'ambiguous or not used'. In 2018 and 2019 each, the report adds, Article 142 was invoked 86 times, the highest on record until 2023. Kesavananda Bharati case: In 1973, this landmark judgment saw the Supreme Court expand the basic structure doctrine of the Constitution using Article 142, asserting its right to strike down amendments that sought to alter the basic features, including fundamental rights, of the Constitution. Bhopal gas tragedy: Following the industrial disaster at a pesticide plant in Bhopal in 1984, the Supreme Court in 1991 ordered the Union Carbide Corporation to pay $470 million in compensation to the victims. In doing so, the Bench highlighted the wide scope of Article 142. Arrest of judicial officers: In 1991, after a chief judicial magistrate was assaulted by police in Gujarat, during contempt of court proceedings, the Supreme Court invoked Article 142 to quash the criminal proceedings and through its judgment, set guidelines for the arrest of judicial officers. Visakha guidelines: While hearing a PIL filed by several women's rights groups on the fundamental rights of working women in 1997, the Supreme Court invoked Article 142 to set definitions for sexual harassment at workplaces and guidelines to tackle such cases. The ruling was later supreceded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Coal allocation scam: As the UPA government in power at the time faced allegations of a scam in the allocation of coal deposits to public sector enterprises, the Supreme Court invoked Article 142 in 2012 to cancel the allocation of nearly 200 coal blocks. Sale of alcohol: In 2016, the Supreme Court used Article 142 to ban the sale of alcohol within 500 metres of the outer edge of highways to stem cases of driving under the influence. Candidates' criminal cases: In 2020, the Supreme Court made it mandatory for political parties to publish information on candidates, including pending criminal cases and the nature of the offences, and the reasons as to why other candidates without criminal cases were not selected. Ayodhya land dispute: The Supreme Court invoked Article 142 twice in its landmark ruling on the Ayodhya title suit in 2019. Though the site of the demolished Babri Masjid was awarded for the construction of a temple, the Court invoked the Article to grant land to the Sunni Waqf Board for a mosque as well. It also invoked the Article to include the Nirmohi Akhara, a Hindu sect, in the trust to construct the temple. Rajiv Gandhi assassination: In 2022, the Supreme Court ordered the release of A G Perarivalan, who was convicted for conspiring to assassinate former Prime Minister Rajiv Gandhi in 1991, after invoking Article 142. Perarivalan had been sentenced to death, until the Supreme Court commuted the sentence to life in prison in 2014 after his mercy plea to the President had been pending for over a decade. Chandigarh mayor poll: In early 2024, the Supreme Court set aside the results of the mayoral polls in the Chandigarh Municipal Corporation in which the presiding officer Anil Masih had named the BJP 's Manoj Sonkar as the winner. Masih was caught on camera allegedly marking ballot papers to make invalid eight votes in favour of the AAP-Congress coalition candidate Kuldeep Kumar. The Court invoked Article 142 to declare Kumar as the validly elected candidate.
Express Tribune
07-03-2025
- Politics
- Express Tribune
'SC had legitimised martial laws'
The Constitutional Bench (CB) of the Supreme Court has observed that court martial should not be mixed up with martial law as the latter is completely unacceptable and an extraconstitutional measure, A seven-member CB led by Justice Aminuddin Khan on Thursday resumed hearing the intra-court appeals filed against October 2023 order of a Supreme Court bench that declared trial of May 9 rioters in military courts null and void. During the proceedings, the Supreme Court Bar Association (SCBA) submitted its written arguments to the court. According to the submissions, the SCBA held a meeting on March 5 to deliberate on its stance regarding military courts. The association stated that, in principle, civilian trials should not be conducted in military courts. It further noted that the provisions of the Pakistan Army Act, 1952 have been upheld as constitutional in judicial interpretations and cannot be declared void at this stage. The SCBA said terrorism has intensified and that Pakistani citizens deserve peace and harmony. Therefore, all constitutional and legal measures should be directed toward eradicating terrorism. Representing the Lahore Bar Association and the Lahore High Court Bar Association, lawyer Hamid Khan argued that the Pakistan Army Act was introduced in May 1952 when Pakistan was governed under the Government of India Act. He said the country's first constitution was enacted in 1956, introducing fundamental rights for the first time, adding that the Pakistan Army Act, 1952 was first amended in 1967. He said the first conspiracy case in Pakistan, the Rawalpindi Conspiracy Case, was initiated in 1951. Justice Hasan Azhar Rizvi noted that even figures like poet Faiz Ahmed Faiz were implicated in the Rawalpindi Conspiracy Case. Continuing his arguments, Hamid Khan stated that to prosecute the accused, the Rawalpindi Conspiracy Special Trial Act of 1951 was introduced. The objective of the conspiracy was to establish a communist system in Pakistan. The accused included both military personnel, such as General Akbar Khan, and civilians. However, their trial was not conducted in a military court but under a special tribunal. At this point, Justice Jamal Khan Mandokhail questioned the relevance of these historical examples to the current military trial case, asking what connection the imposition of martial law had with the present case. "The Constitution does not allow for martial law," he added.
