The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
143. 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.
Article 143 of the Constitution confers upon the Supreme Court advisory jurisdiction. 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 opinion is only advisory, which the President is free to follow or not to follow. [Keshav Singh’s case, AIR 1965 SC 745: 1965 (1) SCR 413]. However, even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight. It would be strange that a decision given by the Supreme Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all, even if, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference.
The first reference under Article 143 was made in the Art. 143, Constitution of India and Delhi Laws Act (1912) (In re), AIR 1951 SC 332: 1951 SCJ 527: 1951 SCR 747.
References made under Article 143: The references made by the President for the opinion of the Supreme Court under Article 143 have included:
(i) In re the Delhi Laws Act, AIR 1951 SC 332: (1951) 2 SCR 747
(ii) In re the Kerala Education Bill, 1959 SCR 995: AIR 1958 SC 956: 1959 SCJ 321
(iii) In re New India Motors Ltd. v. Morris, AIR 1960 SC 875: (1960) 3 SCR 350: (1960) ILLJ 551 SC
(iv) In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845: (1960) 3 SCR 250
(v) In re the Sea Customs Act, AIR 1963 SC 1760: (1964) 3 SCR 787: 1964 2 SCJ 51.
(vi) In re Keshav Singh’s case, AIR 1965 SC 745: 1965 (1) SCR 413
(vii) In re Presidential Election, 1974, AIR 1974 SC 1682: (1974) 2 SCC 33: (1975) 1 SCR 504.
(viii) In re Special Courts Bill, AIR 1979 SC 478: (1979) 1 SCC 380: (1979) 2 SCR 476
(ix) Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522: (1991) Supp 2 SCR 497: 1991 (2) SCALE 1049
(x) Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642
(xi) Re on Principles and Procedure regarding appointment of Supreme Court and High Court Judges, AIR 1999 SC 1: 1998 (5) SCALE 629: (1998) Supp 2 SCR 400
(xii) Gujarat Assembly Election Matter, (2002) 8 SCC 237: AIR 2003 SC 87.
In August then 2002, the President Dr. Abdul Kalam sought advice of the Supreme Court under Article 143 in connection with the controversy between the Election Commission and the Government on elections in Gujarat. The issues related to the limits on the powers of the Election Commission under Article 324, the impact of Article 174 on the jurisdiction and powers of the Commission and whether the Commission could recommend promulgation of President’s rule in a State.
The President may also seek the opinion of the Supreme Court, through a similar reference on any treaty or on matters in the Union List, as Parliament may by law confer.
Source: Dr Subhash C Kashyap, Constitutional Law of India