Q 6(b). Examine the constitutional provisions and nature of advisory jurisdiction of Supreme Court of India. Evaluate your answer with relevant examples.
(UPSC 2025, 15 Marks, 200 Words)
Where in Syllabus:
(Indian Polity and Constitution)
भारतीय सर्वोच्च न्यायालय के सलाहकारी क्षेत्राधिकार की प्रकृति तथा संवैधानिक प्रावधानों का परीक्षण कीजिए । अपने उत्तर का समुचित उदाहरणों द्वारा मूल्यांकन कीजिए ।
Introduction
Explanation
Constitutional Provisions
● Article 143:
○ The President of India can seek the advisory opinion of the Supreme Court on any question of law or fact of public importance. This is known as the Advisory Jurisdiction of the Supreme Court.
○ Example: The Supreme Court was consulted on the constitutional validity of the Berubari Union case in 1960.
● Binding Nature:
○ The opinion provided by the Supreme Court under Article 143 is not binding on the President or the government. It is advisory in nature.
○ Example: In the Ayodhya Dispute, the Supreme Court's opinion was sought, but the government is not obligated to act on it.
● Scope of Advisory Jurisdiction:
○ The Supreme Court can refuse to provide an opinion if it deems the question inappropriate or not of public importance.
○ Example: The Supreme Court declined to give an opinion on the Babri Masjid demolition case, considering it a matter of political sensitivity.
● Role in Federal Disputes:
○ The advisory jurisdiction can be used to resolve disputes between the central and state governments or between states.
○ Example: The Supreme Court's opinion was sought in the Cauvery Water Dispute to provide clarity on water-sharing agreements.
● Impact on Legislative and Executive Actions:
○ While the advisory opinion is not binding, it can influence legislative and executive actions by clarifying constitutional provisions.
○ Example: The advisory opinion on the 9th Schedule of the Constitution helped in understanding the limits of judicial review over laws placed in this schedule.
● Judicial Review and Advisory Jurisdiction:
○ The advisory jurisdiction is distinct from the Supreme Court's power of judicial review, which allows it to invalidate laws and executive actions that violate the Constitution.
○ Example: The Supreme Court's advisory opinion on the Kerala Education Bill helped in shaping the understanding of the right to education and minority rights.
● Historical Context:
○ The advisory jurisdiction has been used sparingly, reflecting the cautious approach of the judiciary in maintaining the separation of powers.
○ Example: The Special Courts Bill case in 1978, where the Supreme Court's opinion was sought on the establishment of special courts for expeditious trial of offenses.
Nature of Advisory Jurisdiction
● Constitutional Provision
○ The Advisory Jurisdiction of the Supreme Court of India is enshrined in Article 143 of the Indian Constitution. This provision empowers the President of India to seek the opinion of the Supreme Court on questions of law or fact that are of public importance.
● Non-Binding Nature
○ The opinion provided by the Supreme Court under its advisory jurisdiction is non-binding. This means that while the Court's advice is respected and considered, the President or the government is not legally obligated to act according to it.
● Scope and Limitations
○ The advisory jurisdiction is limited to questions that are of public importance or involve a substantial question of law. The Supreme Court has the discretion to refuse to provide an opinion if it deems the question inappropriate for advisory jurisdiction.
● Examples of Advisory Opinions
○ A notable example is the Berubari Union Case (1960), where the Supreme Court advised on the constitutional validity of a proposed agreement between India and Pakistan regarding the exchange of enclaves.
○ Another example is the Special Reference No. 1 of 1998, where the Supreme Court was asked to opine on the constitutional validity of the appointment of judges and the interpretation of the Consultation Process under Article 124.
● Impact on Governance
○ While advisory opinions are non-binding, they carry significant moral and persuasive authority. They help clarify complex legal issues and guide the government in policy formulation and implementation.
● Judicial Restraint
○ The Supreme Court exercises judicial restraint in its advisory jurisdiction, often refraining from answering hypothetical questions or those that do not have a direct impact on public interest.
● Role in Constitutional Interpretation
○ The advisory jurisdiction plays a crucial role in the interpretation of the Constitution, helping to resolve ambiguities and providing clarity on constitutional provisions, thereby contributing to the development of constitutional law in India.
Examples
● Article 143 of the Indian Constitution
○ The President of India can seek the advisory opinion of the Supreme Court on any question of law or fact of public importance. This is a unique feature of the Indian judiciary, allowing the executive to consult the judiciary on complex legal issues.
● Berubari Union Case (1960)
○ The Supreme Court was asked to provide an opinion on the implementation of the Indo-Pakistan Agreement relating to the Berubari Union. The Court's advisory opinion clarified the constitutional procedure for ceding territory, emphasizing the need for a constitutional amendment.
● Keshav Singh Case (1965)
○ The Supreme Court was consulted on the powers and privileges of the legislature versus the judiciary. The advisory opinion helped delineate the boundaries of legislative privilege and judicial review, reinforcing the principle of separation of powers.
● Special Courts Bill Case (1978)
○ The President sought the Supreme Court's opinion on the constitutionality of the Special Courts Bill. The Court's advisory opinion provided guidance on the bill's compliance with constitutional provisions, particularly regarding the right to equality and fair trial.
● Ayodhya Dispute (1993)
○ The President referred a question to the Supreme Court regarding the acquisition of certain areas in Ayodhya. The Court's advisory opinion played a crucial role in the legal proceedings related to the Ayodhya land dispute, although it declined to answer the specific question posed.
● Gujarat Assembly Election Case (2002)
○ The Supreme Court was asked to advise on the timing of elections in Gujarat following the dissolution of the state assembly. The advisory opinion underscored the Election Commission's autonomy in deciding election schedules, reinforcing the independence of constitutional bodies.
● Cauvery Water Dispute (1992)
○ The President sought the Supreme Court's opinion on the legality of the Cauvery Water Disputes Tribunal's interim award. The advisory opinion provided clarity on the tribunal's authority and the enforceability of its awards, impacting inter-state water sharing agreements.
● 2G Spectrum Case (2012)
○ The Supreme Court was asked to provide an opinion on the allocation of natural resources. The advisory opinion emphasized transparency and fairness in the allocation process, influencing subsequent policy decisions on resource management.
These examples illustrate the Supreme Court's role in providing advisory opinions that shape legal and constitutional interpretations in India, impacting governance and policy-making.