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Advisory
Jurisdiction UPSC Polity Notes
of the
Supreme
Court
Advisory Jurisdiction of the Supreme Court: Polity Notes
for UPSC
Advisory Jurisdiction is referred to as when a subordinate court or other constitutional body seeks the
advice of the higher Court on a legal issue.
The tradition of soliciting the advice of the courts dates back to England.
The Supreme Court of India has Advisory Jurisdiction under Article 143 of the Constitution. This provision
stems from Section 213 of the Government of India Act, 1935, which gave the Governor General the
authority to ask the Federal Court matters of public interest. Similarly, under Article 143, the President
has the authority to ask the Supreme Court issues that he deems relevant for the public good.
By responding to the question posed to it, the Supreme Court "advises" the President. Only twelve times
has this method been used thus far. It's important to emphasise that this isn't binding on the President. It
is also not "law declared by the Supreme Court," thus it's not binding on lower courts.
In this article, we will examine in depth the Advisory Jurisdiction, its functions, and its powers. This topic
of UPSC Polity is essential for both the UPSC Prelims and Mains Exams.

Background
• The Supreme Court's advisory jurisdiction in the Constitution derives from the Government of
India Act, 1935.
• It implements the provision of Section 213(1) of the Government of India Act, 1935, which grants
the Supreme Court an advisory power similar to that of the Federal Court.
• Section 213 of the Government of India Act, 1935 stated that if the Governor-General believes
that an issue of law has arisen that is of such a kind and of such public significance that it is
desirable to seek the opinion of the Federal Court.
• The Constitutional Advisor virtually replicated the 1935 Act's provision, changing "President" for
"Governor-General" and "Supreme Court" for "Federal Court."
• The Constitutional Advisor's first Draft Constitution, dated 30 October 1947, virtually replicated
the 1935 Act's provision, changing "President" for "Governor-General" and "Supreme Court" for
"Federal Court."
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• Clause (2) of the Constitutional Advisor's proposal was substituted by Article 119 of the Drafting
Committee's Draft Constitution (21 February 1948).
• When the draft article was brought up for discussion in the Constituent Assembly on May 27,
1949, H.V.Kamath moved an amendment to replace the word 'decision' with the word 'opinion,'
and the words 'decide the same and report the fact to the president' with the words submit its
opinion and report to the President.'
• Draft Article 119 was renamed Article 143 of the Constitution during the revision stage.

What Do You Mean By Advisory Jurisdiction?

• The Supreme Court has advisory power under Article 143 of the Indian Constitution.
• The President may seek the Supreme Court's opinion on any point of law or fact of public
significance on which he believes it is necessary to acquire such an opinion.
• On such a referral from the President, the Supreme Court may, after giving it such hearing as it
considers appropriate, report its conclusion to the President.
• The view is just advisory, and the President is free to adopt it or not.Even though the opinion
made in the exercise of advisory authority is not legally binding, it is given tremendous weight.
• In the Delhi Laws case (1951) SCR 747, the first reference under Article 143 was made.
• Only twelve times has the President sought the Supreme Court's opinion under Article 143 of the
Constitution in over sixty years.

Article 143 for UPSC

• Article 143 of the Indian Constitution grants the Supreme Court advisory authority.
• The President may seek the Supreme Court's opinion on any point of law or fact of public
significance on which he believes it is necessary to acquire such an opinion.
• The term 'decision' was replaced by the word 'opinion,' and the phrases 'decide the same and
report the fact to the President' were replaced by the words' submit its opinion and report to the
President,' and ultimately, renumbered as Article 143 of the Constitution.
• To begin, the President may seek the Supreme Court's opinion on any point of law or fact that
has arisen or is likely to arise.
• A stated dispute of law or fact is of such a kind or of such public importance that it is necessary
to seek the Supreme Court's opinion.
• Upon receipt of such a referral, the Supreme Court may, after such hearing as it deems
necessary, submit its decision to the President.
• If it appears to the President that a question of law or fact has arisen, or it is likely to arise, he
may refer the question to that Court for consideration, and the Court may, after such hearing as
it deems necessary, report its opinion to the President.
• Despite anything in the proviso to article 131, the President may submit a disagreement of the
type indicated in to the Supreme Court for opinion, and the Supreme Court shall, after such
hearing as it deems necessary, report to the President its conclusion thereon.
Check the Other Notes of Polity for Competitive Exams here.

Judicial Interpretation Of Advisory Jurisdiction

• Article 143 has nothing to do with the administration of justice. It is a component of an advisory
apparatus meant to help the President (the Executive).
• Article 143(1) is written in broad language, stating that the President may submit any point of law
or fact to the Supreme Court for consideration.
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• The Supreme Court held in In re the Kerala Education Bill, 1957 that the use of the word "may" in
Article 143(1), is discretionary for the Supreme Court to answer or not answer the questions put
to it in a reference under Article 143(1).
• When Mrs. Indira Gandhi, the former Prime Minister, lifted the emergency following her defeat in
the 1977 Parliamentary elections, there was widespread desire in the public for Mrs. Gandhi, her
son Sanjay, and other guilty individuals to be punished.
• The Shah Commission's investigations proved without a shadow of a doubt that there had been
egregious abuses of power during the emergency.
• The guilty must be brought to trial in order to bring justice to the innumerable victims of the
Emergency.

Role of the High Court in Advisory Jurisdiction

• A comparable power is vested in High Courts, which can provide advice if the State administration
or the Governor of the State makes a referral.
• Similarly to how the Apex Court's advice is not binding on the authority that sought it, the High
Court's advice is not binding on the authority that requested it.
• The High Court continues to be the pinnacle court in the State judicial system, which is supported
by a system of lower courts. However, under India's judicial system, they are below the Supreme
Court.
• Articles 214 and 231 of the Indian Constitution address the composition, functions, and
jurisdictions of India's High Courts. These High Courts have a broad and diverse range of
authority.

Detriments of the Advisory jurisdiction

• The numerous advisory assessments are criticised because they are fictitious, speculative,
abstract, and very unpredictable, given there are no competing parties.
• They are more scholarly in nature and occasionally entail political disputes, which may be perilous
in a secular society like ours.
• As a result, this ability should be utilised with caution, keeping in mind that particularly sensitive
and political matters should not be addressed.
• It is preferable to refer to situations involving state difficulties or problems, and this should be done
only when the State Government is in power.

Study Important Articles of the Constitution of India here.

Essential aspects of Advisory Jurisdiction of the Supreme Court-

• Article 143 makes no mention of administration of justice or adjudication. It is not adjudication,
but rather consultation, a role meant to help the President.
• Its reach, however, is broader, since it states that the President may bring any subject of law or
fact of public interest to the Supreme Court for review.
• The ruling of the Supreme Court is just advisory and not binding. The President has the option of
following or not following.
• Even though the opinion expressed in the exercise of advising authority is not legally enforceable,
it carries weight and has considerable persuasive power.

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• The Supreme Court further ruled that the references made in this Article do not constitute "law
declared by the Supreme Court" as defined in Article 141 of the Constitution.
• As a result, even if it has a high persuasive value, it is not binding on lesser courts.
• Mr. Ram Jethmalani, a private member, proposed a Bill in the House of the People (Lok Sabha)
to establish Special Courts to accelerate the trial of cases of gross abuse of authority during an
emergency. On August 1, 1978, the President, acting under Article 143, sent the following
questions to the Supreme Court for decision.
• The Supreme Court, on the other hand, retains the right to re-examine and, if necessary, overturn
the position expressed in an opinion issued under Article 143. (1).
• In Cauvery Water Disputes Tribunal1992, it was determined that the tribunal's jurisdiction under
Article 143(1) could not be used to revisit any of its previous rulings. This is only permissible under
Article 137 of the Constitution.
• The first reference to Article 143 was made in the matter of the Delhi Laws, (1951) SCR 747. So
far, the President has made about twelve references to the Supreme Court under Article 143 of
the Constitution.

Is the Court Obligated to Deliver an Opinion?

• The Supreme Court is under no obligation to give an opinion. Rather, the Supreme Court may
reject to provide an opinion under Article 143 in matters it deems improper or unsuitable for such
consideration.
• However, the Supreme Court ruled in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that
explanations must be given in that instance.
• The Kerala Education Bill, 1957, reserved the Bill for consideration by the President, who
submitted it to the Supreme Court for an opinion on its legality.
• The Supreme Court held in the Kerala Education Bill, 1957 that the use of the word "may" in
Article 143(1), it is discretionary for the Supreme Court to answer or not answer the questions
under Article 143(1).
• On a Presidential referral seeking the Supreme Court's opinion on "whether a temple originally
existed at the site where the Babri Masjid subsequently stood," the five-judge bench refused to
answer, claiming that the question was superfluous and unnecessary, opposed to secularism,
and favoured one religious community, and thus did not need to be answered. Union of India v.
Ismail Faruqui.

Landmark Judgments:
• Delhi Laws (1951) SCR 747: The first reference to Article 143 was made in the matter of Delhi
Laws (1951) SCR 747. Since independence, the President has made just 14 referrals under
Article 143. According to Chandrachud C.J., the question was whether the law stated in the
opinions was "law declared by the Supreme Court."
• Cauvery Dispute Tribunal: - In the instance of the Cauvery Dispute Tribunal, the Central
Government constituted a Tribunal to investigate the dispute between the states of Karnataka
and Tamil Nadu over the Cauvery River. In one of its rulings, the Tribunal instructed the state of
Karnataka to deliver a particular amount of water to Tamil Nadu.
• Delhi Laws Act case: - In the Delhi Laws Act case, the Court reviewed the Act's legitimacy in
terms of delegated legislation. It is worth mentioning that each of the seven judges who took part
in the verdict provided their own view. They all agreed on a few essential notions, namely, that
the Parliament should have the authority to delegate legislative power to the government.
• Berubari Union (1960): - In Berubari Union (1960), a judicial ruling was sought to determine how
India's land may be handed to Pakistan.
• Sea Customs Act (1962): - To evaluate the legality of the Sea Customs Bill with relation to
Article 288 of the Constitution in the Sea Customs Act (1962).
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• Special Court reference case (1978): - The Special Court reference case (1978) was brought
to investigate the scope of the legislature's privileges and the authority of judicial review in regard
to them.
• Consideration of some questions about the Presidential election was sought in the Presidential
Bill (1974).

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