Examine the constitutional provisions and nature of advisory jurisdiction of Supreme Court of India. Evaluate your answer with relevant examples.

Examine the constitutional provisions and nature of advisory jurisdiction of Supreme Court of India. Evaluate your answer with relevant examples. (2025, 15 Marks)

The United States Supreme Court has refused advisory opinions since 1793 as a breach of the separation of powers. India instead inherited the Federal Court’s reference power (Section 213, Government of India Act 1935), closer to Canadian practice. The 2025 reference on assent to bills has now placed this rarely used jurisdiction at the centre of constitutional politics.

Constitutional provisions

  • Article 143(1): the President may refer a question of law or fact, arisen or likely to arise, of public importance. The Court “may” report its opinion.
  • Article 143(2): disputes under pre-Constitution treaties and sanads, which the proviso to Article 131 excludes, are referred, and the Court “shall” report.
  • Article 145(3) requires at least five judges, and Article 145(4) requires the opinion to be delivered in open court.
  • Because the President acts on advice (Art. 74), a reference is in substance the Union government’s.

Nature

  • Discretionary, not obligatory, under 143(1). The Court returned the Ayodhya reference unanswered in M. Ismail Faruqui v. Union of India (1994).
  • Not binding on the President, and not a judgment between parties. Yet opinions carry “great weight” (St. Xavier’s College, 1974) and are invariably followed.
  • Not an appeal. The Cauvery Water Disputes Tribunal reference (1991) held that Article 143 cannot reopen what the Court has decided.
  • Anticipatory. A reference can test a bill before it is enacted, as with the Special Courts Bill (1978).

Evaluation

Clarification

  • In re Delhi Laws Act (1951): essential legislative functions cannot be delegated.
  • Kerala Education Bill (1958): minority institutions under Art. 30 may be regulated, not destroyed.
  • Berubari Union (1960): ceding territory needs a constitutional amendment, which produced the Ninth Amendment.
  • Keshav Singh (1964): legislative privilege does not oust judicial review.
  • The Third Judges reference (1998) fixed the collegium; the Natural Resources reference (2012) held that auction is not constitutionally mandatory, without disturbing the 2G judgment.

Risks

  • Political buck-passing. In Ayodhya the executive sought judicial cover for a political settlement.
  • Delay. The reference on Punjab’s Termination of Agreements Act, made in 2004, was answered only in 2016.
  • Appeal by the back door. After State of Tamil Nadu v. Governor of Tamil Nadu (April 2025), the Union referred fourteen questions. On 20 November 2025, a bench led by Chief Justice B. R. Gavai rejected judicial timelines and “deemed assent”. It held the reference maintainable by separating the April decree, which stands, from its propositions of law, which it displaced. Critics call this a review in disguise that leaves adverse judgments with an uncertain afterlife.

Conclusion

The jurisdiction has served best when the Court answered genuinely open questions (Berubari, Kerala Education) and declined political ones (Ayodhya). Its legitimacy depends on that restraint. By letting the executive reopen a recent judgment, the 2025 opinion weakened the finality principle of Cauvery. A device meant for constitutional dialogue now risks being used as a second appeal.