Monday, October 10, 2016

Article 143 of Indian Constitution - Advisory Jurisdiction of Supreme Court

Article 143 of the Indian constitution refers to the advisory jurisdiction of the Supreme Court which is put to use by the president under special circumstances. Before going into detail, I would first familiarize you with some of the basic terms and concepts so that it’s easier to understand this article.

To begin with, I would like to remind you about the Article 123 which talks about the presidential power to pass ordinances when either house of the parliament is not in session. Article 143 of Indian Constitution talks about another power of the president in which he can ask the opinion of the Supreme Court on matters that he thinks fit. We will go into detail very soon. First let’s understand the Supreme Court of India.

The Supreme Court came into existence on 28th January 1950. Before we had Supreme Court as our apex judiciary body, (apex means top), there were two other bodies at the top of our judicial system, The Federal Court of India and The Judicial Committee of the Privy Council. Supreme Court replaced both these body and became our top authority of law. Initially there was one chief justice and 7 lower ranking judges. The number can be increased by the government.  Presently, the maximum strength of judges is 31.

The jurisdiction of the Supreme Court is explained in Articles 124 to 147 of Indian Constitution, which we will study in subsequent articles. 

For now, I will only tell you that there are three types of Supreme Court jurisdiction.

 Appellate Jurisdiction of Supreme Court - appellate means to reverse or appeal a previous decision made by a lower court. In such cases, the decisions can be challenged in the Supreme Court in the form of an appeal.

Original Jurisdiction of Supreme Court - Here, cases regarding disputes between the states or the governments are included. This is an overly simplified statement just so you can have a vague idea.

Advisory Jurisdiction of Supreme Court - This is the main concern for this topic. This refers to the jurisdiction of the Supreme Court on matters referred to it by the President under Article 143 of Indian Constitution.

Origin of Article 143 of Indian Constitution:

Section 213 of the Government of India Act. 1935, had the provision in which if at any time the then Governor General of India felt that a question of law had arisen or could have arisen in the future of public importance, such that it was expedient to take the opinion of The Federal Court (Apex judicial body at that time), he might refer the question to the Federal Court at his discretion, and the court would then provide the answer to him after conducting an appropriate hearing.

This Act was then modified when our constitution was being written and some words were changed to better suit our needs, for example, ‘governor general’ was replaced by ‘president’ and  ‘decision’ was changed to ‘opinion’.

Advisory Jurisdiction of Supreme Court:

The Article 143 of Indian Constitution refers to the Advisory Jurisdiction of the Supreme Court. 

According to this article,

“The President may seek the opinion of the Supreme Court on any question of law or fact of public importance on which he thinks it expedient to obtain such an opinion. On such reference from the President, the Supreme Court, after giving it such hearing as it deems fit, may report to the President its opinion thereon.”

The word expedient means appropriate or advisable. Once the Supreme Court receives such a reference from the President, it will conduct an appropriate hearing where the matter will be advocated and discussed from different angles. After this step, it will report its “opinion” to the President. The word opinion is crucial here. It clearly states that it’s just an opinion. The President may or may not follow it. However, this “opinion” still carries a lot of weight.

This power of the president is meant to be used scarcely and so it has been. So far, only 12 such references have been made. The first of which was made in The Delhi Laws Case, 1951. One such reference was made in 2002 by the then President Dr Abdul Kalam. He sought the advice of the Supreme Court under Article 143 of Indian Constitution regarding the dispute between The Election Commission and the Government on elections in Gujarat. The issue was regarding the powers of the Election Commission under Article 324 of Indian Constitution and whether the Election Commission could recommend President’s rule in a state.

Apart from this, if the question asked by the President under Article 143 of Indian Constitution is too vague or hypothetical, such that the Supreme Court thinks it is impossible or improper to exercise opinion in that particular case, then it can refuse to provide an opinion too. Of course in this case Supreme Court has to provide reasons for not giving its advise.

Article 143 of Indian Constitution

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 the proviso to article 131, refer a dispute of the kind mentioned in the [said proviso] to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

As we can see, there are two parts of the Article, 143(1) of Indian Constitution and 143(2) of Indian Constitution.

Article 143(1) deals with any question of law or fact of public importance which has arisen or which is likely to arise.

Article 143(2) deals with any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.

Notice that I have underlined two words here. In Article 143 (1), it appears that the Supreme Court has a choice whether to provide an answer due to the use of the word “may”. But in Article 143 (2), the word “shall” has been used which makes it mandatory for it to opine after a hearing. This means in the first Article 143(1) of Indian Constitution, Supreme Court may or may not give its advise but in the second case i.e. Article 143(2) of Indian Constitution, Supreme Court has to give its advise.

Conclusion -

The Article 143 of Indian Constitution simply provided the President with additional powers. It is a consultation power. There is no judgement passed by the Supreme Court. It does not refer to jurisdiction. This is just a power of the President which he may use at his discretion or when he sees fit. The answer provided by the Supreme Court is not a judgement. The Supreme Court cannot be asked to reconsider any of its previous decisions due to Article 143(1). The ‘opinion’ provided under this article are not ‘the law declared by the Supreme Court’ but still holds a high persuasive value in inferior courts and administration in general.

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