Previously on this blog, I have discussed the facts of the Keshav Singh’s case here. In this post, I will be discussing the judgment of the Supreme Court in Re Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures) focussing specifically on the Supreme Court’s advisory jurisdiction.
This case came before the Hon’ble Supreme Court after a reference was made by the President under Article 143(1) and the President formulated five questions of law (which will be discussed in the next part of this series) for the opinion of the Court. Article 143(1) authorises the President to refer questions of law or fact to the Supreme Court, which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them. The Supreme Court ‘may’ give an opinion of the same. The language of clause 1 is quite broad and shows that the Supreme Court is not bowed to give an advisory opinion in every reference made to it. The Court ‘may refuse’ to give its advisory opinion for ‘strong, compelling and good reasons’.
But under clause 2 of Article 143, a matter which is excluded from the Supreme Court’s jurisdiction under Article 131 (Original Jurisdiction) may be referred to the Court by the President for opinion and the Court shall, after such hearing as it thinks fit, report to the President [under clause 2, the phraseology used it shall which makes the Court constitutionally obligated to give opinions].
The issue of Article 143 in the Keshav Singh’s Case
In the Keshav Singh’s case, the question of presidential reference arose before the court when Advocate-General of Bihar raised a preliminary objection that “the present reference is invalid under Article 143(1) because the questions referred to this Court are not related to any of the entries in List I and III and as such, they cannot be said to be concerned with any the powers, duties or functions conferred on the President”. The crux of the argument was that the President cannot refer those questions on which she doesn’t have any power, duties or functions whatsoever.
As predictable it was, the Court rejected the arguments and held in paragraph 14:
“The words of Article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact….such a question is of such a nature or of such public importance”
The words used in clause 1 of Article 143 are of wide amplitude, hence they could not be interpreted narrowly as suggested by the AG of Bihar. The requirement of Article 143 is (a) satisfaction of the President that a question of law or fact has arisen or likely to arise; (b) she must be satisfied that the question if of public importance that it is expedient to obtain the opinion of the Court. If these two conditions are fulfilled, then the questions may be referred to the Court. In the present case, it is apparent that the reference made by the President is of utmost public and constitutional importance.
It is open for the president to formulate questions in regard to (a) validity of provisions proposed to be included in the Bills which would come before the legislature; (b) questions of constitutional importance. This issue, whether the Supreme Court is bound to answer to the reference under Article 143(1), was raised on the floor of the Constituent Assembly by Shri H.V. Kamath when article 119 of the draft constitution which corresponds to article 143 of the present Constitution came up for consideration. Shri Kamath while moving Amendment No. 1952 to the draft constitution, wanted a clarification from the assembly in the following words (Constituent Assembly Volume VIII, Book No. 3):
“Sir, the point which I wish to raise in my Amendment No. 1952 is a simple one. The Article contemplates that the Supreme Court should report to the President its opinion or in its discretion it may withhold its opinion. I believe what is meant is that when once the President refers the matters to the Supreme Court. If that is not meant than the language is right. But if it is meant that once the President refers a matter to the Supreme Court, it must report its opinion thereon to the President, then the word “shall” must come in. I wanted clarification on that point”
Shri H.V. Kamath did not move his amendment when Dr B.R. Ambedkar pointed out that the Supreme Court is not bound. Therefore, the Supreme Court is not bound to answer the presidential reference made under the article.
The Courts may refuse to make an opinion on the reference if “such a situation may perhaps arise if the questions formulated for the advisory opinion are purely socio-economic or political questions which have no relation whatever with any of the provisions of the Constitution, or have no significance” (paragraph 18 of Keshav Singh’s case). But the Courts have to give strong and compelling reasons. On questions of fact, Justice AN Ray stated in Re Presidential Poll case of 1974 in paragraph 38:
“The truth or otherwise of the facts cannot be enquired or gone into nor can Court go into the question of bona fides or otherwise of the authority making the reference. This Court cannot go behind the recital. This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143(1).”
The Court in the case of Keshav Singh held that the present case involves “grave constitutional importance and significance and it is our [the Court’s] duty to make a report to the President embodying our answers to the questions formulated by [President]”. Hence, they accepted the reference made by the President for opinion. But the Supreme Court has the discretion and it may refuse to give an opinion on certain matters under clause 1.
Some earlier decisions: Understanding the “subject matter” of references
During the last seventy years since the constitution came into force, several references have been made to the Supreme Court under Article 143(1), but none under Article 143(2). I have taken note, in the tabular form, of a few references made by the President and the subject matter of the same.
|Reference case & year||Subject-Matter|
|Re the Delhi Laws Act (1951)||Scope and extent of executive’s legislative power under the Delhi Laws Act|
|Re the Kerala Education Bill (1958)||Constitutional validity of certain provisions of the Kerala Education Bill which was reserved by the Governor for the President’s consideration|
|Re Berubari (1960)||Guidance to central executive as to how it should implement the Indo-Pakistan Boundary agreement between the Prime ministers of India and Pakistan|
|Re the Sea Customs Act (1962)||Validity of draft bill seeking to amend certain provisions of the Sea Customs Act of 1878|
|Re Presidential Poll (1974)||Whether the election of the President could be held in absence of an elected State Assembly|
|Special Courts Bills (1978)||Constitutionality of Special Courts Bill|
|Re in the matter of Cauvery Water dispute Tribunal (1992)||Whether the tribunal established under the Inter-state Water Dispute Act, 1956, has power to grant an interim relief to the parties to the dispute|
|Re in the matter of Ram Janmabhoomi (1993)||Whether a Hindu temple or religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid… in the area on which the structure of Masjid stood.|
|Re Supreme Court/High Court judges (1998)||Nine questions were formulated on these three points: (a) consultation between the CJI and other judges in the matter of appointment of the SC and HC Judges; (b) Transfer of HC judges and judicial review of the same; (c) the relevance of seniority in making appointments to the Supreme Court|
|Gujarat Assembly Election matter||After premature dissolution of assembly, question arose with regard to the time-frame within which election to the assembly must be held|
Through various decisions, the Court has emphasised that abstract or speculative or hypothetical or too general questions should not be referred to it for an advisory opinion. But if this is done by the President, then the Court may return the questions pointing out the impediments in answering it.
Jurisdiction of “Consult the Supreme Court” prior to the adoption of the Constitution
Before the adoption of the Constitution, the Federal Court had similar power of advisory jurisdiction under Section 213 of the Government of India Act, 1935. Clause 1 of section 213 is the same as Article 143(1) of the Indian Constitution. Clause 2 of the Act of 1935 is similar to Article 145(4) and (5) of the Indian Constitution. Some of the principles of constitutional interpretation which the Federal Court laid down in its advisory opinions in relation to the interpretation of the federal provisions of the Government of India Act of 1935 have very well stood the test of time and remain valid and controlling even to-day in interpreting the Constitution. (See In Re the CP Petrol Tax Case of 1939, In Re the Hindu Women’s Right to Property Act, 1937)
Presidential references have always been made only when the issues have become clarified and crystallised by discussion amongst the general public and it has actually been possible for the courts to express an opinion. I believe that the advisory jurisdiction conferred on the court is important as it allows the executive to consult the Supreme Court and save itself from the embarrassment if a particular law is held to be unconstitutional later (as held in many cases in the past). But should an opinion under Article 143 be considered a law of the land or a precedent? If that’s answered in positive [see the arguments against this on here], then the impact of this position, however, is that “proceedings which take place in an unreal atmosphere may sometimes prejudice the interest of certain future litigants”. A clarified opinion of the precedent value must come from the Apex Court.