GS2 – Polity
Context
The President of India recently invoked Article 143 to seek the Supreme Court’s advisory opinion on whether the President or a Governor can be judicially compelled to act, especially regarding the withholding of assent to bills and whether justifications or timelines can be imposed.
Understanding Article 143: Advisory Jurisdiction
Purpose and Scope
- Article 143 grants the President the authority to seek the Supreme Court’s advice on significant questions of constitutional or legal importance.
- The Court’s response is advisory, not binding.
Two Clauses of Article 143
- Clause (1): The President may refer questions of law or fact involving public importance. The Court may choose whether or not to respond.
- Clause (2): Applies to pre-Constitution treaties or agreements excluded from Article 131. The Court must provide an opinion.
Article 131 Reference
- Article 131 empowers the Supreme Court to adjudicate Centre–State or inter-State disputes over legal rights, separate from advisory references.
Evolution
- Inspired by Section 213 of the Government of India Act, 1935, which empowered the Federal Court to offer advisory opinions.
Procedure and Nature of Advisory Opinion
Presidential Satisfaction and Advice
- The President must be satisfied that the matter holds public significance.
- References are made based on the Union Council of Ministers’ advice.
Constitution Bench Requirement
- As per Article 145(3), all such references must be heard by a Constitution Bench with at least five judges.
Limitations
- The Court cannot expand the scope of the reference.
- It cannot take up such matters suo motu; only the President can initiate.
- No specific time limit is prescribed for the Court to respond.
- The Court has procedural autonomy to decide whether to hold oral hearings or rely on written submissions.
Previous Invocations of Article 143
Article 143 has been used approximately 15 times, including:
- Berubari Union Case (1960)
- Cauvery Water Dispute
- Kerala Education Bill
- Natural Resources Allocation case
Judicial Discretion in Article 143 References
Under Clause (1): Discretionary Power
- The Court may decline to answer if the issue is political or lacks judicially manageable standards.
- It must, however, record a reasoned constitutional justification for such a refusal.
Under Clause (2): Mandatory Duty
- The Supreme Court must provide an opinion for disputes involving pre-Constitution agreements.
Legal Status of the Court’s Opinion
- The Court’s opinion is not binding under Article 141.
- This was affirmed in the St. Xavier’s case.
- The term used is “opinion” instead of “judgment,” underlining its non-adjudicatory and advisory nature.
- Despite not being binding, such opinions carry persuasive authority and are usually respected.
- If the President disregards the Court’s advice, reasons must be recorded.
Precedential Constraints
- Article 143 cannot overturn established constitutional rulings.
- The Supreme Court cannot alter the ratio decidendi (binding legal principles) of previous judgments.
- This provision does not permit reinterpretation of settled law.
Constitutional Utility of Article 143
- Pre-emptive Guidance: Helps clarify constitutional issues before actions are taken.
- Judicial-Executive Coordination: Promotes institutional dialogue in complex cases.
- Federal Dispute Resolution: Helps resolve inter-governmental legal conflicts.
- Constitutional Morality: Strengthens democracy through reasoned judicial interpretation.
- Checks and Balances: Ensures institutional balance between branches of government.
Concerns and Challenges
- Lack of Enforceability: Opinions are not enforceable against political decisions.
- Risk of Misuse: Executive may exploit Article 143 to delay or justify controversial actions.
- Judicial Overreach: Frequent references may push the judiciary into political domains.
- Ambiguity: The term “public importance” is vague, risking frivolous references.
- Delays: No timeline for the Court’s response may affect decision-making urgency.