Constitution of India
Article 143: Power of President to consult Supreme Court
Part V — The Union (Chapter IV — The Union Judiciary)
Clause (1)
WHAT IT SAYS: If the President considers that a question of law or fact has arisen, or is likely to arise, which is of public importance, he may refer it to the Supreme Court, and the Court may report its opinion thereon. WHAT IT MEANS: The President (acting on Council of Ministers' advice) can seek the Supreme Court's advisory opinion on any public-importance question — but the Court has discretion to decline answering. KEY DOCTRINE: Doctrine of Advisory Jurisdiction — the word 'may' (not 'shall') grants the SC discretion to refuse; opinions are non-binding and do not constitute law under Article 141.
Clause (2)
WHAT IT SAYS: The President may, notwithstanding the proviso to Article 131, refer disputes arising from pre-Constitution treaties, agreements, covenants, engagements, sanads, or similar instruments to the Supreme Court for opinion, and the Court shall report its opinion. WHAT IT MEANS: For disputes involving pre-Constitution agreements (excluded from original jurisdiction by the proviso to Art. 131), the President can refer them to the SC — and here the Court is obligated to answer (word 'shall' used). KEY DOCTRINE: Mandatory advisory obligation — unlike Clause (1), the Court cannot refuse to give its opinion under Clause (2), creating a compulsory consultative mechanism for pre-Constitution treaty disputes.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 213(1) Original provision: Governor-General could refer questions of law to the Federal Court for advisory opinion. What India kept: Retained the basic framework of executive-referral to the apex court for advisory opinion. 2. Canada — Supreme Court Act (Section 53, originally Section 60 of 1906 Act) Original provision: Governor-General in Council may refer important questions of law or fact to the Supreme Court for advisory opinion. What India kept: Adopted the concept of non-adversarial advisory reference by the head of state to the highest court. INDIA'S SPECIFIC ADAPTATIONS: 1. Expanded scope from 'questions of law' (Section 213, GoI Act 1935) to 'questions of law or fact' — to allow factual controversies of public importance to also be referred. 2. Added Clause (2) — a new provision not in the GoI Act 1935, covering pre-Constitution treaty disputes excluded from original jurisdiction under the proviso to Article 131. 3. Rejected the US model — the US Supreme Court refuses advisory opinions (since 1793, Chief Justice Jay's refusal to President Washington), but India adopted a cooperative executive-judiciary dialogue model suited to its parliamentary system. 4. Made Clause (1) discretionary ('may') but Clause (2) obligatory ('shall') — unlike Canada where all references are broadly obligatory, India calibrated judicial discretion differently for the two types of references.
Constituent Assembly Debate
DEBATED ON: 27 May 1949 and 6 June 1949 (CAD Volume VIII) DRAFT ARTICLE NUMBER: Draft Article 119 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved the Draft Article; supported the advisory jurisdiction modelled on Section 213 of the GoI Act 1935 with expanded scope to include questions of fact. 2. A member (name not recorded in available CAD summaries) — Proposed amending Clause (2) to require the Supreme Court to give parties an opportunity of being heard and to submit its opinion and report to the President. MAJOR DISAGREEMENTS: 1. Minimal recorded disagreement — The article was relatively uncontroversial; the only discussion was a clarification on whether the Supreme Court was bound to answer a reference. 2. The amendment to Clause (2) was accepted by the Assembly without debate. FINAL OUTCOME: Draft Article 119 was adopted on 6 June 1949 with the Clause (2) amendment accepted — the provision was adopted largely as drafted with only a minor drafting amendment to Clause (2). KEY NOTE: As noted by constitutional scholars, there was 'hardly any discussion on this article' — the only substantive point raised was whether the SC is bound to answer the reference.
Landmark Judgments
LANDMARK JUDGMENTS: 1. In Re Delhi Laws Act (1951) — Clarified the scope and limits of delegated legislation; first major use of Article 143 advisory jurisdiction. 2. In Re Kerala Education Bill (1958) — Harmonized Fundamental Rights with Directive Principles regarding minority educational institutions; confirmed Court can opine on Bills before enactment. 3. In Re Berubari Union (1960) — Held that cession of Indian territory to a foreign state requires a constitutional amendment under Article 368, not mere executive action. 4. In Re Keshav Singh / Special Reference No. 1 of 1964 (1965) — Clarified legislative privileges; held that the Court may refuse to express advisory opinion having regard to the nature of questions and relevant circumstances. 5. In Re Special Courts Bill (1978) — Recognized validity of pre-enactment judicial scrutiny; offering opinion on a Bill does not encroach upon Parliament's powers. 6. In Re Cauvery Water Disputes Tribunal (1993) — Declared that Article 143 cannot be used to review or overturn settled Supreme Court judgments; advisory jurisdiction is not appellate jurisdiction. 7. In Re Ismail Faruqui v. Union of India / Ayodhya Reference (1993) — Court declined to answer the reference on Ram Janmabhoomi, citing secularism and inappropriateness for advisory determination. 8. In Re Special Reference No. 1 of 1998 / Third Judges Case (1998) — Established the expanded Collegium system (CJI + 4 senior-most SC judges) for judicial appointments; the advisory opinion was given binding value in practice. 9. In Re Natural Resources Allocation / 2G Spectrum Reference (2012) — Clarified that auction is not the only method for allocating natural resources; distinguished between 'decision' and 'view of law' — Court can clarify legal principles without altering core decisions. NOTABLE DISSENTS (if any): 1. CJ Chandrachud in Special Courts Bill Reference (1978) — Opined that it would be strange if advisory opinions bind no one at all, suggesting they should carry some weight under Article 141. SCHOLARS & JURISTS: 1. H.M. Seervai — Argued that Article 143 is part of an advisory machinery designed to assist the President, not part of the administration of justice. 2. Justice V.R. Krishna Iyer — Described presidential references as offering 'a solemn judicial discourse on national questions.' 3. Arvind Datar (Senior Advocate) — Argued that Article 143 cannot be used by the SC to evaluate its own decisions; it is just non-binding advice. 4. Justice Fali S. Nariman — Stressed that such mechanisms reflect 'mature constitutional statesmanship' and institutional dialogue.