Adrija Guhathakurta
National Law University, Odisha
The Indian Scenario:
Article 143 allows the Supreme Court to advise the President regarding matters raised by him/her in the interest of public welfare. The advice given by the Apex Court is neither binding on the President nor on the subordinate courts. In ‘The Kerala Education Bill’ case it was stated by the Supreme Court that it had the power to decline a proposal by the President in the matter of giving advice regarding a certain public welfare issue. In the case of Keshav Singh it was first declared that the President is free to follow or not to follow the advice of the Supreme Court. Till date Article 143 has been invoked 12 times in our constitutional history. The first reference under Article 143 was made in the ‘Delhi Laws’ case in the year 1951. A complicated situation came up regarding the constitutional aspects of the extension of the Ajmer-Merwara region. The question of re-delegation of already delegated powers arose in the case. President’s reference was necessitated in order to bring forth clarity so as to prevent an administrative downfall.
Even though the Supreme Court is allowed to decline taking up President’s matter under Article 143, in the case of M. Ismail Furuqui v. UOI, the need for the Supreme Court to state the reason for the same was emphasized. According to the court, the exercise of judicial discretion is reflected in its refusal to opine on the question submitted by the president be it on the grounds of jurisdictional, judicial or discretionary considerations. In the case of UP Legislative Assembly it was stated that:
“Only where this Court feels that it would be inadvisable for it to express its advisory opinion, it may respectfully refuse to express any opinion.”
Article 143 doesn’t impose any obligation on the Supreme Court hence it cannot be said that Supreme Court exercises a jurisdiction pursuant to Article 143 of the Constitution. In Special Courts Bill, the court held that, under clause (2) of Article 143 it is advisable for Supreme Court to return a reference in case it finds for a valid reason that such a reference is not capable of being answered. Before taking up advisory references, the court has to decide whether there exists a question of law or fact and whether the reference is being delivered by the president at all. The Court also has to ensure whether the reference is of actual public importance or not.
The choice to practice discretion is a troublesome and fragile errand. It requires the highest caliber of legal statesmanship and all out freedom of the judges in the exhibition of their capacity. The court must act with “caution, deliberation and rectitude” remembering forever its obligation to stay unaffected by the never-ending political contention chaperon on a reference by the President.
Scenario in other Jurisdictions:
The position in Canada is similar to that in India. The federal cabinet has the power to refer a question to the Apex Court which it may either hear like an appeal or refuse to answer at all in case the question is deemed ambiguous. On the other hand, Australian High Court has been constitutionally prohibited from issuing such advisory opinions. The Supreme Court of America isn’t bound by any mandatory advisory jurisdiction provision either but certain federal state units provide power to the court of the state to exercise such jurisdiction on “important questions of law”.
The International Court of justice exercises advisory jurisdiction in case of public (governmental) international organizations. The advisory opinion given by the court is not binding except for in certain rare cases where it has been explicitly made binding.
