Can Supreme Court's Judgment Be Altered In Presidential Reference? Article 143 & Advisory Jurisdiction Explained

Article 143(1) of the Constitution is in the spotlight after the President of India took an extraordinary step to invoke this provision to refer to the Supreme Court as many as 14 questions in relation to the powers of the Governors and President to act on Bills.Since the issues under Reference were settled by the Supreme Court's judgment in State of Tamil Nadu vs Governor of Tamil Nadu, which did not sit well with the Union Government, the Presidential Reference has raised some eyebrows and kicked up a political controversy as well.What is Article 143?Article 143 confers advisory jurisdiction on the Supreme Court, which can be invoked by the President to seek the Court's opinion on questions of law and facts of public importance.Supreme Court not bound to answer the ReferenceThe Supreme Court is not bound to give an opinion on the Presidential Reference. The Court may “refuse to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions forwarded to it and having regard to the other relevant facts and circumstances,” as held in Special Reference No. 1 of 1964.“The Court is entitled to decline to answer a question posed to it under Article 143 if it considers that it is not proper or possible to do so, but it must indicate its reasons,” as held In Re the Special Courts Bill, 1978. Although such observations were made in these References, they were answered to an extent.The only instance so far of the Supreme Court returning a Reference unanswered is the Reference made in relation to the Ayodhya-Babri Masjid dispute (Special Reference 1 of 1993).Is the opinion given under Article 143 binding?In The Ahmedabad St. Xavier's College Society and Another vs State of Gujarat and Another 1974 (1) SCC 717, the Supreme Court observed that the opinion given by the Court under Article 143 is not binding, though it carries a lot of weight and persuasive value. It was held in this judgment that the opinion expressed In Re Kerala Education Bill was not a binding precedent as it was given in exercise of advisory jurisdiction. Only the decisions given in “contested cases” are binding, the Court held. “The opinion expressed by this Court in Re Kerala Education Bill was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect," the Court held in St.Xavier's.Constitutional law expert HM Seervai also opined that the opinion given by the Supreme Court under Article 143 was only advisory in nature and was not binding law within the meaning of Article 141.However, a contrary view was expressed in the Presidential Reference In Re: The Special Courts Bill, 1978. Justice YV Chandrachud expressed in this Reference that an opinion given under Article 143 ought to be binding on all Courts. “It would be strange that a decision given by this 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 as in the instant case, 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,” Justice Chandrachud expressed. At the same time, the judgment held this question “may have to be considered more fully on a future occasion.”Article 143 not an appellate power over judicial decisionsThe jurisdiction under Article 143 is not an appellate power over judicial decisions. In the Reference related to Cauvery river dispute(Special Reference 1 of 1998), the Supreme Court observed that the Reference power cannot be used to sit in appeal over the decision of the Inter-States Water Disputes Tribunal.The Court observed therein : “We cannot, therefore, countenance a situation whereby question 3, and for that matter questions 1 and 2, may be so construed as to invite our opinion on the said decision of this Court. That would obviously be tantamount to our sitting in appeal on the said decision, which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said decision through a Reference under Article 143 of the Constitution.”Article 143 can't be used as an appellate power over Supreme Court's decision between same partiesIn the Cauvery Reference, the Court further stated that Article 143 cannot be used as an appeal against its own decisions inter-se parties. The Supreme Court's judgments between parties can be altered only in the exercise of its own review powers. An appellate power cannot be read into Article 143."A decision given by this Court can be reviewed only under Article 137...

Can Supreme Court's Judgment Be Altered In Presidential Reference? Article 143 & Advisory Jurisdiction Explained

Manu Sebastian

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