The first reference under Article 143 was made in the Delhi Laws case
Introduction
Article 143 confers advisory jurisdiction on the Supreme Court and provides for the power of President to consult the Supreme Court; it says that if it appears to the President that a question of law or fact has arisen, or can arise in future which is of public importance and it is beneficial to obtain the opinion of the Supreme Court, he may refer the question for consideration and the Court may, after such hearing report to the President its opinion. Further, 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.
Opinion of Supreme Court under advisory jurisdiction will be binding on all the Courts in India under Article 141 .
Article 74(1) mandates the President to act in accordance with the aid and advise of his council of ministers. Therefore, though the reference may go in the name of the President , in reality, the reference is by the council of ministers. But the Supreme Court cannot verify or examine as to whether the reference is by the President himself or on the advise of the council of ministers in view of the constitutional bar contained in Article 74(2).
But if the President consults the Supreme Court under Article 143 in the absence of an advise from the council of ministers, he will be committing a violation of the Constitution for which he may be impeached .
Presidential Reference
The Supreme Court is well within the jurisdiction to answer/advice the President in a Reference made under Article 143(1) if the questions referred are likely to arise in future of such questions are of public importance or there is no decision of the Supreme Court which has already decided the question referred
In Natural Resources Allocation, In re, Special Reference No. 1 of 2012, , it was held that, the use of the word “doubt” in reference is not required for maintainability thereof. Reference is not to be returned unanswered on ground of form or pattern alone. It requires appropriate analysis, understanding and appreciation of content or issue on which opinion of Supreme Court is sought by President, keeping in view constitutional responsibility, juridical propriety and judicial discretion. Reference should not be vague, general or undefined. It is only when questions become unspecific and incomprehensible that risk of returning reference unanswered arises.
Is the Supreme Court bound to answer the reference?
The only discretion the Supreme Court has is either to answer the reference or respectfully decline to send a report to the President
In Kerala Education Bill, 1957, In re, , the Court opined that it is obligatory on the Supreme Court to entertain a reference and to report to the President it’s opinion if the reference is under article 143(2), but under clause (1), the Court has a discretion and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it.
But in Special Courts Bill, 1978, In re, , the Court opined that the right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in clauses (1) and (2) of Article 143, in the sense that clause (1) provides that the court “may” report to the President its opinion on the question referred to it, while clause (2) provides that the court “shall” report to the President its opinion on the question. Even in matters arising under clause (2), though that question does not arise in this reference, the court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered.
Is the President bound by the advisory opinion of Supreme Court?
The marginal note of Article 143 reads “Power of President to Consult Supreme Court”. The word “consult” shows beyond doubt that the President is not bound to give effect to the opinion. Further, an opinion cannot be enforced or executed. Also, Article 142 which deals with the enforcement of decrees and orders of Supreme Court, and under clause (1) it states that only decrees and orders of the Supreme Court can be enforced. Since an opinion is neither a decree nor an order, it cannot be enforced.
Article 143(1): Advisory and consultative Jurisdiction
The Supreme Court generally answers the questions of law or fact when raised by the parties, however, this Article confers a specific jurisdiction called the consultative or advisory jurisdiction, on the Supreme Court, to give its opinion on questions which are unconnected to some pending case.
Further, the advisory opinion of the Supreme Court under Article 143 is not binding on the President , though the President normally honours it, and sometimes the Court also takes the undertaking through the Attorney general that the President will honour it
The Supreme Court can refuse to express its advisory opinion if it is satisfied that it should not express its opinion, having regard to other relevant facts and circumstances, such as if the questions are purely socio-economic or political questions and have no relation to the Constitution
Some of the references made under Article 143(1) are as follows:
.
. (Ram Janma Bhumi Babri Masjid Matter)
. (Gujarat Assembly Election Matters)
(Re on Principles and Procedure regarding the appointment of Supreme Court and High Court Judges)
In Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter), the question of fact referred was “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi – Babri Majid?” Therefore, this is the only reference wherein the President referred a question of fact to the Supreme Court under Article 143(1).
Frequently Asked Questions:
Q. What is the meaning of Article 143?
A. Article 143 confers power on the President to consult the Supreme Court and seek its opinion on question of law or fact, which is of such nature and of such importance that it is expedient to obtain Supreme Court's opinion.
Q. How many times has the President used Article 143?
A. The President has till date used Article 143 only twelve times.
, Article , cl 1
, Article , cl 2
In re Special Courts Bill, 1978, .
Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), .
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, .
Levy of Estate Duty, In re,
Special Reference No. 1 of 1998, Re,
Ad hoc Committee Report on the Supreme Court
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