Article 143 of the Indian Constitution vests the President of India with the power to consult the Supreme Court of India on certain matters. This provision establishes the advisory jurisdiction of the Supreme Court, a unique feature allowing the executive head to seek legal opinions from the highest court in the land.
This consultative mechanism serves as a vital tool for the President to obtain authoritative guidance on complex legal or factual issues of significant public importance before taking executive action, potentially averting future legal challenges. It represents a unique interaction between the executive and the judiciary.
Original Text
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 this Constitution, refer to the Supreme Court for consideration and report any dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution and to which the Government of the Dominion of India or any of its Provinces was a party.
Provided that nothing in this clause shall be deemed to derogate from the provisions of Article 131.
Detailed Explanation
Article 143 delineates the scope of the Supreme Court’s advisory jurisdiction and the conditions under which the President can seek its opinion.
Clause (1) grants the President the authority to refer a question of law or fact to the Supreme Court if it is of such a nature and public importance that obtaining the Court’s opinion is deemed expedient. This clause uses the word “may” when referring to the Court’s power to report its opinion, indicating that the Supreme Court is not bound to give an opinion on a reference made under this clause. The Court has the discretion to refuse to answer the question if it deems it inappropriate, hypothetical, or for other sufficient reasons. The opinion rendered under this clause is purely advisory and not binding on the President, the government, or other courts.
Clause (2) deals with a specific category of disputes: those arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad, or similar instrument entered into before the commencement of the Constitution, to which the Government of the Dominion of India or any of its provinces was a party. In this case, the President shall refer the dispute to the Supreme Court, and the Court shall report its opinion. The use of “may” for the President and “shall” for the Court implies the President’s discretion to refer, but once referred, the Court’s obligation to provide an opinion is mandatory. The Proviso clarifies that this clause does not affect the original jurisdiction of the Supreme Court under Article 131 regarding disputes between the Government of India and states or between states. The opinion under this clause, while mandatory for the Court to give, is generally considered advisory in nature, similar to opinions under Clause (1).
The advisory jurisdiction is distinct from the Court’s other jurisdictions (original, appellate, writ) as it does not involve a dispute between parties seeking resolution but is a consultation sought by the head of the executive.
Detailed Notes
- Source of Power: Article 143 of the Constitution of India confers advisory jurisdiction on the Supreme Court.
- Consulting Authority: The President of India is the sole authority empowered to consult the Supreme Court under this Article.
- Purpose: To obtain the Supreme Court’s opinion on a question of law or fact.
- Two Types of References (Clauses):
- Article 143(1): Reference on a question of law or fact that has arisen or is likely to arise, which is of such nature and public importance that it is expedient to obtain the SC’s opinion.
- President’s Discretion: President may refer.
- Supreme Court’s Discretion: SC may give opinion. The Court can refuse to answer the question.
- Nature of Opinion: Advisory, not binding on the President, government, or lower courts.
- Article 143(2): Reference on a dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad, etc., entered into before the Constitution’s commencement, to which the Dominion of India or a province was a party.
- President’s Discretion: President may refer (notwithstanding other provisions).
- Supreme Court’s Obligation: SC shall consider and report its opinion. Giving the opinion is mandatory for the Court once referred.
- Nature of Opinion: Generally considered advisory, similar to opinions under Clause (1), though mandatory for the Court to render.
- Proviso: Safeguards the Supreme Court’s original jurisdiction under Article 131.
- Article 143(1): Reference on a question of law or fact that has arisen or is likely to arise, which is of such nature and public importance that it is expedient to obtain the SC’s opinion.
- Nature of Proceedings: References under Article 143 are not ‘cases’ or ‘disputes’ in the traditional adversarial sense. There are no parties seeking resolution of a legal conflict.
- Scope of Inquiry: The Supreme Court determines the procedure for hearing the reference. It can hear arguments from the Attorney General and other interested parties if allowed.
- Limitations on SC’s Power under 143(1): The Court can refuse to answer:
- Vague or general questions.
- Hypothetical questions.
- Political questions or questions not of public importance.
- Questions that it feels it cannot or should not answer.
- Binding Nature: The advisory opinion is not binding as a judicial precedent in the same way a judgment in a case is. However, it carries great weight and is persuasive authority, often influencing executive and legislative action and being cited in subsequent cases.
- Historical References: Notable references include:
- Re Delhi Laws Act (1951)
- Re Kerala Education Bill (1958)
- Re Berubari Union (1960)
- Re Sea Customs Act (1963)
- Re Presidential Election (1974)
- Special Reference No. 1 of 1993 (Appointment and Transfer of Judges - led to the Collegium system)
- Re Cauvery Water Dispute Tribunal (1993)
- Re Ayodhya Matter (1994)
- Distinction from Article 131: Article 131 deals with original jurisdiction over disputes between the Union and states or between states, resulting in binding judgments. Article 143 is advisory jurisdiction, initiated by the President, resulting in a non-binding opinion (mostly).
Additional Comments
- The advisory jurisdiction allows the government to ascertain the legality of a proposed action or policy before implementing it, potentially preventing constitutional complications.
- This provision is borrowed from Section 4 of the Judicial Committee Act, 1833 of the UK and Section 102 of the Government of India Act, 1935. Similar provisions exist in the constitutions of Canada and Australia.
- The discretion granted to the Supreme Court under Article 143(1) is crucial for maintaining the separation of powers, allowing the Court to avoid being drawn into purely political questions.
- While not legally binding, the Supreme Court’s opinion under Article 143 carries significant moral and constitutional authority and is rarely disregarded by the executive.
- The scope and nature of questions that can be referred, as well as the SC’s discretion, have been subject to judicial interpretation over the years.
Summary
Article 143 empowers the President of India to seek the Supreme Court’s opinion. Under Clause (1), the President can refer a question of law or fact of public importance; the Court has discretion to give an opinion, which is advisory and not binding. Under Clause (2), the President can refer a dispute related to pre-constitution treaties/agreements; the Court is obligated to give an opinion, which is also generally considered advisory. This jurisdiction allows the executive to obtain authoritative legal advice from the judiciary on significant matters, distinct from the Court’s regular adjudicatory functions.