The Supreme Court of India is the final court of appeal and the highest judicial court under the Indian Constitution. The Supreme Court enjoys broad powers compared to the lower courts, advising the President, issuing directions, orders, writs, or making laws. The Indian Constitution under Part V Article 124-147 deals with the provisions for independence, powers, jurisdiction, organization, and powers of the Supreme Court of India.
In this article, we will discuss the advisory jurisdictions of the Supreme Court, essential features of Article 143, why is advisory jurisdiction important, how is the jurisdiction of the court determined, is the President bound by the advice given by the Supreme Court, is the court bound to provide an opinion, whether the decision of the Supreme Court is binding on the lower court, the difference between advisory jurisdiction and appellate jurisdiction and landmark judgments on advisory jurisdiction.
There are three types of jurisdictions of the Supreme Court, namely;
- Original Jurisdiction: Article 131 of the Indian Constitution provides that any dispute between the Central Government and one or more States or between two or more States where the dispute involves the matter of fact or law. Article 32 of the Indian Constitution deals with the Supreme Court’s Original Jurisdiction for the enforcement of fundamental rights of the Indian citizens.
- Appellate Jurisdiction: Article 132, 133, and 134 of the Indian Constitution deals with appellate Jurisdiction of the Supreme Court, where any matter relating to substantial question of law for the interpretation of the Constitution is concerned, the High Court can refer the topic to the Supreme Court to pass any order or decree.
- Advisory Jurisdiction:Article 143, Constitution of India, where the President of India refers the Supreme court for its advice.
What is the Advisory Jurisdiction of the Supreme Court?
The Advisory Jurisdiction of the Supreme Court was derived from the Government of India Act, 1935, where the Government of India had given advisory jurisdiction to the Federal Court.
Advisory Jurisdiction of the Supreme Court is provided under Article 143 of the Indian Constitution. The President of India has the power to take the advice of the Supreme Court, where the matters involve a question of fact or law and is of public importance. The Supreme Court may report its opinion to the President after considering the matter.
The President may also refer the disputes that are mentioned under Article 131 (Original Jurisdiction) to the Supreme Court for its opinion. The Supreme Court would accordingly report its opinion to the President after considering the matter.
The essential feature of Article 143 of the Indian Constitution
Article 143 has the following important features:
- It is an advisory function of the Supreme Court meant to assist the President.
- The Supreme Court reports its opinion to the President on the concerned matter; there is no decree, order, or judgment.
- The President can seek advice on any questions of fact or law of public importance. This article gives a broad scope of matters to be put forth before the Supreme Court.
Whether the opinion of the Supreme Court is binding on the President?
The Supreme Court’s opinion is only advisory; it is not binding on the President. The President is free to decide whether he wants to follow the opinion of the court or not. Though the opinion of the court is not binding, it is of high value. (Keshav Sigh Case AIR 1965 SC 745).
Whether the opinion of the Supreme Court is binding on the lower court?
As stated earlier, the Supreme Court’s opinion is mere advice and not any law under Article 141 of the Constitution. Therefore, it is not binding on the lower court as well.
Is the Supreme Court bound to give an opinion?
The Supreme Court is not bound to give its opinion under Article 143 if it does not deem fit. The Supreme Court is at its discretion to answer the question referred to under Article 143(1). Still, it cannot deny giving its opinion under Article 143(2) of the Indian Constitution. (Ismail Faruqui Vs Union of India). The Supreme Court can refuse to answer the question which has socio-economic, a political question that has no constitutional importance, or if the court is satisfied that it should not express its opinion looking at the facts and circumstances of the case.
Why is Advisory Jurisdiction important?
The Advisory Jurisdiction has the following importance:
- It can guide the government regarding the question of its legal power,
- It can help in removing any doubt regarding the validity of any government action or legislation,
- It provides an advanced judicial opinion regarding legislative measures.
- Having a second opinion on crucial matters is significant. It helps the government decide whether the laws or the issues involved are beneficial.
However, the advisory jurisdiction of the court should not be used frequently. It should be used only in cases where it is essential for the interest of the public.
Difference between Advisory Jurisdiction and Appellate Jurisdiction
Points of difference |
Advisory Jurisdiction |
Appellate Jurisdiction |
Nature |
In advisory jurisdiction, the President can seek the advice of the Supreme Court under Article 143 of the Indian Constitution. | Appellate Jurisdiction can be invoked by a certificate granted by the High Court under Article 132(1), 133(1), or 134 of the Indian Constitution, where an appeal can be made in respect of any order or judgment passed by the high court in both civil and criminal matters. |
Scope |
It involves a substantial question of fact and law and if it is of public importance. | It involves a substantial question of law. |
Enforceability |
the advice by the Supreme Court is not binding on the President or lower courts. | The judgment or decree passed by the Supreme Court is binding on the parties |
How is the court’s jurisdiction determined?
When a matter is referred to the Supreme Court of India for its advice, the court should confine itself to the question raised by the President. It cannot go beyond the matter so referred.
What is Advisory Jurisdiction in the International Court of Justice?
Advisory jurisdiction, also known as advisory procedure/proceedings, is only available to five United Nations organs, fifteen specialized agencies, and one related organization.
The United Nations Secretary-General or the director or secretary-general of the entity can file a written request to the Registrar for an advisory opinion. The court may conduct written or oral proceedings to assemble all the necessary facts and information about the raised issues. After receiving the request, the court may request the listed states and organization to produce a written statement about the matter, followed by a written comment or reply to other’s statements, as the court deems necessary. Suppose the court considers it necessary to conduct the proceedings. In that case, such written statements are available for the public at the beginning of the oral proceedings.
The court’s advisory opinion is not binding, except where the court expressly provides it. However, though the advisory opinion is not binding, it is of high value. This advisory opinion acts as an instrument of peace and preventive diplomacy. It also helps to strengthen the peaceful relationship between the states.
Landmark Judgements on Advisory Jurisdiction
Gujarat Election Case 2002, 8 SCC 237
In this case, the President had sought the advice of the Supreme Court regarding the matters of elections which were in controversy between the Election Commission and the government.
The issues raised in this case were limits on the Election Commission’s power under Article 324, Article 174’s effect on the powers and jurisdiction of the Election commission and whether the Commission has the power to recommend the declaration of President’s rule in a State.
The Supreme Court had held that Article 143(1) could not be used to review or appeal against the judgment of the Supreme Court.
Centre for Public Interest Litigation V Union of India (2G Spectrum Case)
The government had filed a Presidential Reference concerning the 2G judgment. The Supreme Court had cancelled 122 2G licenses granting access to spectrum. It had also ordered re-allocation of licenses through auction. The court also declared the First Cum First Serve (FCFS) policy to allocate natural resources unconstitutional. The allocation of natural resources should be done by auction.
The issue raised in this case was whether the Supreme Court had the power to interfere in the policy-making decisions.
The Supreme Court had held that the court is entitled to interfere in the matter, which is of public importance. The court could review the policy if it violates the fundamental rights of the Constitution or is arbitrary. Article 143 cannot be invoked against the judgment of the court.
Conclusion
Advisory Jurisdiction of the Supreme Court is provided under Article 143 of the Indian Constitution. Under this article, the President is empowered to reference the Supreme Court regarding the matters that involve a substantial question of fact and law, which is of public importance. The court is at its discretion to advise the President on the subject matter, provided the reason backs it for such rejection. The opinion given by the Supreme Court of India is not binding on the President, or the lower courts. The President is free to decide whether to follow or not to follow the given advice. Though the advice is not binding, it is of high value.
