Special Advisory Jurisdiction Of Supreme Court in India

SYNOPSIS

The Special Advisory Jurisdiction has been conferred upon the Supreme Court through Article 143 of the Constitution. In accordance with it, the President may, at any point of time, seek opinion, from the Supreme Court, in form of an advice, on such matters which, he thinks, involve an important question of law or fact, and are of public importance. Exclusive to the Supreme Court and not conferred to any other court in the country, this jurisdiction has utmost importance in a country like India where new developments take place a rapid rate and serves as a bridge between the matter of public importance and the expertise of the Apex Court. These advices, however, are merely opinions and neither the Supreme Court is bound to render them (except for the below mentioned subject matters), nor is the President bound to follow them.

INTRODUCTION

Brought into existence by the Constitution of India, the Hon'ble Supreme Court is the cornerstone of the third pillar of the Indian democracy. As of now, in 2020, the Supreme Court and the High Courts are the only Constitutional courts, whose establishment and provisions are enshrined in the Constitution itself, and therefore play the pivot role in retaining and being a bastion to protect the principles of democracy and of the Constitution.Forming a part of the Higher Judiciary, the Supreme Court should have ideally been empowered to preside only over the appeals coming from lower courts, and that too in the most limited sense, by merely taking up some crucial points of law and thereafter leaving the onus of deciding the plethora of cases on those lower courts.

However, it was perhaps the erudition and vast experienceof our Constitution makers, or merely their wisdom, whichbrought them to this realization that unlike in other democracies, the Supreme Court in Indiamust play a much wider role in protecting rights of each individual and thereby bolster the principles of this Constitution.In view of the same, thisConstitutional courthas been given a manifold jurisdiction, which goes far beyond from merely deciding appeals. The Supreme Courtenjoys four types of jurisdiction viz. Original Jurisdiction, Appellate Jurisdiction, Writ Jurisdiction and Special Advisory Jurisdiction.

JURISDICTION OF THE SUPREME COURT

Established under Article 124 of the Constitution, the Supreme Court of India enjoys the four aforesaid jurisdictions. In exercise of the first and most obvious jurisction- Appellate Jurisdiction, the Court hears and adjudicates appeals that come from various High Courts. Keeping aside what is usually observed in the real world scenario, this jurisdiction has to be exercised in a limited manner, and the Court is required to decide only the most crucial questions of law and let the lower courts adjudicate them. There are stringent requirements for a case to be considered eligible as per the standards of the court, and to decide this, a certification is required from the concerned High Court.

Secondly, the Court enjoys Original Jurisdiction, in exercise of which, it can hear original case (i.e. those case which have not come from appeals and are presented first hand before the Supreme Court) involving a dispute:

  • between the Government of India and one or more States; or
  • between the Government of India and any State or States on one side and one or more other States on the other; or
  • between two or more States

The Court can also hear Special Leave Petitions under Article 136 of the Constitution, wherein the petitioner can approach it directly with requiring any certificate from High Court.

Thirdly, the Court exercises Writ Jurisdiction under Article 32 of the Constitution, wherein a petitioner can directly it approach if there has been a violation of any of his Fundamental Rights, and seek any order, direction or any of the five writs mentioned in the Article.

SPECIAL ADVISORY JURISDICTION

Other than the three above mentioned jurisdictions, the Supreme Court also enjoys a unique jurisdiction called the Special Advisory Jurisdiction under Article 143 of the Constitution. In exercise of this jurisdiction, the Supreme Court can confer its advice to the President, on matters involving such question of law or fact which the President thinks are of 'public importance.' Article 143 reads as follows:

"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”

From a plain reading of the Article, it may be inferred that the Supreme Court can exercise this jurisdiction only when the President 'consults' it and seeks its advice on matters which:

  • Involve a question of law, or
  • Involve a question of fact, and
  • Are of public importance.

It is noteworthy that neither the Supreme Court is not bound in any manner to give its advice, nor is the President bound to follow any advice rendered under Clause (1). Clause (2) of the Article, however, makes it mandatory for the Supreme Court to render its advice to the President if the subject matter involves a dispute arising out of any treaty, agreement, covenant, engagement, sanad, or any other similar instruments which were entered into before the commencement of the Constitution. The President however will again not be bound to follow such advice.

DO HIGH COURTS HAVE SUCH JURISDICTION

The jurisdictions of Supreme Court and that of High Courts are usually considered concurrent, since both these constitutional courts enjoy Original Jurisdictions (subject matters differ for both), Appellate Jurisdiction and Writ Jurisdiction. However, the jurisdiction of the two differs since High Courts do not have the Special Advisory Jurisdiction as that of Supreme Court. This jurisdiction has been exclusively conferred upon the Supreme Court, and there is no provision in the Constitution conferring the same on High Courts.

HOW DOES IT DIFFER FROM OTHER JURISDICTIONS

This jurisdiction differs from other jurisdictions conferred upon the Supreme Court in two manners. One, in exercise of this jurisdiction, the Supreme Court departs from its ordinary role of an adjudicating body, i.e. it no more adjudicates a dispute between two parties, and takes up the role of a consultation body by providing advice sought by the President on the ascertained subject.

Secondly, it differs from other jurisdictions on basis of its binding power. The judgments passed by the Supreme Court in its ordinary course are not only binding on the parties to the dispute, but also are set as precedents which are to be followed by all the courts throughout the country. However, while exercising the advisory jurisdiction, the Court submits a report, and not a judgment, which is pursued by the President only as a mere advice and in no manner becomes bound by it.

Even though such advice, rendered by the highest court of the country, holds a high persuasive value, it does not become a precedent for the lower courts, nor does the content in it serve as an order or direction to the Government or any other private individual/body. Even the President remains free to determine his further course of action, for which he may also choose to ignore thereport in its entirety.

Thirdly, it differs from other jurisdictions in a way that the Supreme Court itself is not bound to exercise it. Unlike other jurisdiction, which the Court is bound to exercise (though each of them is subjected to certain conditions), this jurisdiction's exercise remains under the Court's discretion, i.e. it may refuse the President to give the advice sought by him on an ascertained subject.In case of M. Ismail Faruqui v. Union of India[i], the Court held that it can refuse to render its advice by indicating proper reasons.

Also, during 1957, when the then President referred to it the Kerala Education Bill, 1957 for consideration, the Court clarified that "the use of the word 'may' in Article 143(1), in contradiction to the use of the word 'shall' in Article 143(2) shows that whereas in a reference under Article 143(2) the Supreme Court is under an obligation to answer the questions put to it, under Article 143(1) it is discretionary for the Supreme Court to answer or not to answer the questions put to it.”[ii]

Fourthly, it differs from other jurisdictions in a way that it remains outside the ambit of Article 137. The said article provides that the Court may review any of the judgments pronounced by it. However, since the advice rendered by the Court under Article 143 is merely a report and does not qualify as a judgment, Article 137 holds no applicability over it. If necessary, the President may ask the Court to reconsider it advice, in which case, it might even change its original stand; however, that would not fall under the ambit of Article 137. TheCourt also made it clear the other way round during the 1992 case involving Cauvery Water Dispute Tribunal, that "the jurisdiction under Article 143(1) cannot be used to reconsider any of its earlier decisions. This can be done only under Article 137 of the Constitution.”[iii]

CONCLUSION

The provisions of Article 143 were taken from Section 213 of the Government of India Act, 1935. In a country like India, which homes a population of over a billion people, developments occur at an astonishingly fast rate, and it is therefore expected that new question regarding law and/or facts will keep arising.Under such circumstances, Article 143 is a panacea because it empowers the Supreme Court to render its expertise in challenging times and make it expedient for the Executive to decide their further course of action.Though not binding, the advices rendered by the Supreme Court hold extremely high persuasive value, and even though they are not a 'law', they still serve as guidance, and interpretations of various laws.

  • [i]AIR 1995 SC 605.
  • [ii]1959 1 SCR 995.
  • [iii]AIR 1992 SC 522.

 

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Prajjwal Gour Online
on 12 December 2020
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