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Home / IAS Preparation / Advisory Jurisdiction Of The Supreme Court

Advisory Jurisdiction of Supreme Court - Background, Judicial Interpretation, Essential Aspects & More

Last Updated on Aug 21, 2023
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Advisory jurisdiction of the Supreme Court is needed when a constitutional body or a lower court seeks the advice of the higher court in a law matter. "advisory opinion" refers to the court's judge's opinion. The legislative body or public authorities have brought up a legal issue, forming the jurisdiction's basis. As observed, the Supreme Court of India now has advisory power under "Article 143 of the Indian Constitution." The Supreme Court can assist the President with any matter of public interest or law, which is the basic concept of this jurisdiction. 

The Advisory Jurisdiction of the Supreme Court is one of the most important topics for the UPSC IAS exam. It covers a significant part of the UPSC IAS Polity subject in the Mains General Studies Paper-II syllabus and General Studies Paper-1 of the UPSC Prelims Syllabus.

This article will examine the Advisory Jurisdiction, its functions, and its powers in depth. This topic of UPSC Polity is essential for both the UPSC Prelims and Mains Exams.

Role of the High Court in Advisory Jurisdiction
  • A comparable power is vested in High Courts, which can provide advice if the State administration or the Governor of the State makes a referral.
  • Similarly to how the Apex Court’s advice is not binding on the authority that sought it, the High Court’s advice is not binding on the authority that requested it.
  • The High Court continues to be the pinnacle court in the State judicial system, supported by a system of lower courts. However, under India’s judicial system, they are below the Supreme Court.
  • Articles 214 and 231 of the Indian Constitution address the composition, functions, and jurisdictions of India’s High Courts. These High Courts have a broad and diverse range of authority.

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Detriments of the Advisory jurisdiction
  • The numerous advisory assessments are criticised because they are fictitious, speculative, abstract, and unpredictable, given that no competing parties exist.
  • They are more scholarly and occasionally entail political disputes, which may be perilous in a secular society like ours.
  • As a result, this ability should be utilised with caution, keeping in mind that particularly sensitive and political matters should not be addressed.
  • It is preferable to refer to situations involving state difficulties or problems, and this should be done only when the State Government is in power.

Study Important Articles of the Constitution of India here.

Essential aspects of Advisory Jurisdiction of the Supreme Court-
  • Article 143 makes no mention of the administration of justice or adjudication. It is not adjudication but consultation, a role meant to help the President.
  • Its reach, however, is broader since it states that the President may bring any subject of law or fact of public interest to the Supreme Court for review.
  • The ruling of the Supreme Court is just advisory and not binding. The President has the option of following or not following.
  • Even though the opinion expressed in the exercise of advising authority is not legally enforceable, it carries weight and has considerable persuasive power.
  • The Supreme Court further ruled that the references made in this Article do not constitute “law declared by the Supreme Court” as defined in Article 141 of the Constitution.
  • As a result, even if it has a high persuasive value, it is not binding on lesser courts.
  • Mr. Ram Jethmalani, a private member, proposed a Bill in the House of the People (Lok Sabha) to establish Special Courts to accelerate the trial of cases of gross abuse of authority during an emergency. On August 1, 1978, the President, acting under Article 143, sent the following questions to the Supreme Court for decision.
  • The Supreme Court, on the other hand, retains the right to re-examine and, if necessary, overturn the position expressed in an opinion issued under Article 143. (1).
  • Cauvery Water Disputes Tribunal 1992 determined that the tribunal’s jurisdiction under Article 143(1) could not be used to revisit any of its previous rulings. This is only permissible under Article 137 of the Constitution.
  • The first reference to Article 143 was made in the Delhi Laws (1951) SCR 747. So far, the President has made about twelve references to the Supreme Court under Article 143 of the Constitution.

Is the Court Obligated to Deliver an Opinion?
  • The Supreme Court is under no obligation to give an opinion. Rather, the Supreme Court may reject to provide an opinion under Article 143 in matters it deems improper or unsuitable for such consideration.
  • However, the Supreme Court ruled in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that explanations must be given in that instance.
  • The Kerala Education Bill, 1957, reserved it for consideration by the President, who submitted it to the Supreme Court for an opinion on its legality.
  • The Supreme Court held in the Kerala Education Bill, 1957, that the use of the word “may” in Article 143(1) is discretionary for the Supreme Court to answer or not answer the questions under Article 143(1).
  • On a Presidential referral seeking the Supreme Court’s opinion on “whether a temple originally existed at the site where the Babri Masjid subsequently stood,” the five-judge bench refused to answer, claiming that the question was superfluous and unnecessary, opposed to secularism, and favoured one religious community, and thus did not need to be answered. Union of India v. Ismail Faruqui.

Landmark Judgments Under Advisory Jurisdiction
  • Delhi Laws (1951) SCR 747: The first reference to Article 143 was made in the matter of Delhi Laws (1951) SCR 747. Since independence, the President has made just 14 referrals under Article 143. According to Chandrachud C.J., whether the law stated in the opinions was “law declared by the Supreme Court.”
  • Cauvery Dispute Tribunal: – In the instance of the Cauvery Dispute Tribunal, the Central Government constituted a Tribunal to investigate the dispute between the states of Karnataka and Tamil Nadu over the Cauvery River. In one of its rulings, the Tribunal instructed the state of Karnataka to deliver a particular amount of water to Tamil Nadu.
  • Delhi Laws Act case: – In the Delhi Laws Act case, the Court reviewed the Act’s legitimacy in terms of delegated legislation. It is worth mentioning that each of the seven judges who took part in the verdict provided their view. They all agreed on a few essential notions, namely, that the Parliament should have the authority to delegate legislative power to the government.
  • Berubari Union (1960): – In Berubari Union (1960), a judicial ruling was sought to determine how India’s land may be handed to Pakistan.
  •  Sea Customs Act (1962): – To evaluate the legality of the Sea Customs Bill about Article 288 of the Constitution in the Sea Customs Act (1962).
  • Special Court reference case (1978): – The Special Court reference case (1978) was brought to investigate the scope of the legislature’s privileges and the authority of judicial review.

Consideration of some questions about the Presidential election was sought in the Presidential Bill (1974).

About Article 143 of Indian Constitution
  • Article 143 of the Indian Constitution grants the Supreme Court advisory authority.
  • The President may seek the Supreme Court’s opinion on any point of law or fact of public significance on which he believes it is necessary to acquire such an opinion.
  • The term ‘decision’ was replaced by the word ‘opinion,’ and the phrases ‘decide the same and report the fact to the President’ were replaced by the words’ submit its opinion and report to the President,’ and ultimately, renumbered as Article 143 of the Constitution.
  • The use of advisory jurisdiction has been limited and infrequent, with the Court being cautious to respect the separation of powers and not interfere with the executive or legislative functions.
  • The Supreme Court's advisory opinions have provided valuable legal interpretation and guidance to the President and the government on complex legal issues.
  • Although the opinions are non-binding, they hold significance in shaping legal discourse and providing clarity on constitutional and legal matters.

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What Do You Mean By Advisory Jurisdiction?

Advisory jurisdiction refers to the authority of a court to provide advisory opinions or advice on legal matters to the government or other entities. It allows courts to give non-binding opinions on constitutional or legal questions without being bound by an actual dispute between parties. The purpose of advisory jurisdiction is to assist in decision-making and provide guidance on complex legal issues. The opinions issued under advisory jurisdiction are not enforceable or binding but can carry significant persuasive weight. Advisory jurisdiction is commonly found in constitutional or supreme courts of many countries, serving as a mechanism for legal interpretation and clarification. The use of advisory jurisdiction varies across jurisdictions, and specific laws and constitutional provisions determine its scope and limitations.

Background of Advisory Jurisdiction of Supreme Court

The historical background of advisory jurisdiction in India can be traced back to the drafting of the Constitution. The Supreme Court’s advisory jurisdiction in the Constitution derives from the Government of India Act 1935. During the Constituent Assembly debates, the provision for advisory jurisdiction was discussed, but it did not find a place in the final text of the Constitution. However, Article 143 was included in the Constitution, which grants the President the power to seek the Supreme Court's opinion on questions of law or fact.

  • The framers of the Constitution envisioned this provision as a means to obtain expert legal advice on matters of public importance.
  • The first instance of the Supreme Court exercising advisory jurisdiction occurred in 1951 when the President sought its opinion on the powers of the Election Commission.
  • Since then, the Court has rendered several advisory opinions on various matters, including questions related to the constitutional validity of legislation, powers of the President, and interpretation of legal provisions.

Judicial Interpretation Of Advisory Jurisdiction

  • In India, the Supreme Court has exercised advisory jurisdiction under Article 143 of the Constitution.
  • Advisory opinions are non-binding and purely advisory.
  • The President can refer questions of law or fact to the Court for its opinion.
  • The Court examines legal and constitutional aspects, reviews precedents, and provides an opinion based on its interpretation.
  • Opinions are limited to matters referred by the President and cannot be given on hypothetical or political questions.
  • Advisory jurisdiction respects the separation of powers and does not infringe on executive or legislative domains.
  • Opinions carry significance but are not binding or precedent-setting.
  • Overall, advisory jurisdiction in India serves as an advisory body on legal and constitutional questions of public importance when referred by the President.

Check the Other Notes of Polity for Competitive Exams here.

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Advisory Jurisdiction of the Supreme Court: FAQs

Article 143 of the Indian Constitution grants the Supreme Court advisory authority. Article 143: The President's authority to consult the Supreme Court.

The Supreme Court has authority over all of the country's legal courts and tribunals. All courts within its authority are overseen by the High Court.

When a subordinate court or other constitutional body seeks the advice of the higher Court on a legal issue, this is referred to as Advisory Jurisdiction.

Article 143 of the Indian Constitution grants the Supreme Court advisory authority which the President may seek the Supreme Court's opinion on any point of law or fact of public significance on which he believes it is necessary to acquire such an opinion.
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