ADVISORY JURISDICTION OF THE SUPREME COURT :
SIGNIFICANCE AND USE UNDER ARTICLE 143
A PROJECT SUBMITTED
On Date- 1 8 / 08 /2025
In partial fulfillment for the award of the degree of
B.A.LL.B. FIVE YEARS INTEGRATED COURSE
FOR SUBJECT: CONSTITUTIONAL LAW- II
SUBMITTED BY: SUPERVISED BY:
MOHAMMED FAIZAN MS. ANUSHKA AJMERA
B.A.LL.B IV SEMESTER ASSISTANT PROFESSOR
S.S. JAIN SUBODH LAW COLLEGE, JAIPUR
Affiliated to
Dr. BHIMRAO AMBEDKAR LAW UNIVERSITY, JAIPUR
CERTIFICATE
This is to certify that the work reported in the project entitled, “Advisory Jurisdiction Of
The Supreme Court : Significance And Use Under Article 143”, submitted by Mohammed
Faizan, to the S. S. Jain Subodh Law College, Jaipur is a Bonafide record of his original work
carried out under my supervision. It is further certified there is no plagiarism in it. This work is
being recommended for further evaluation by the external examiner.
Place: Jaipur, Rajasthan (Signature of the Supervisor)
Date:
i
ACKNOWLEDGEMENT
I acknowledge with profundity, my obligation to Almighty God and my parents for giving
me the grace to accomplish my work, without which this project would not have been
possible. I express my heartfelt gratitude to my respected faculty, Ms, Anushka Ajmera
Assistant Professor for providing me with valuable suggestions to complete this project
work. I am especially grateful to all my faculty members at S.S. Jain Subodh Law College
who have helped me imbibe basic research and writing skills.
Lastly, I take upon myself, the drawbacks and limitations of this study, if any.
Date: (Signature of the Student)
Place: Jaipur, Rajasthan Mohammed Faizan
B.A.L.L.B IV SEMESTER
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DECLARATION
I hereby declare that the work reported in this project entitled, “Advisory Jurisdiction Of
The Supreme Court : Significance And Use Under Article 143”, submitted to S.S Jain
Subodh Law College Jaipur is an authentic record of my work carried out under the
supervision of Ms. Anushka Ajmera. It is further certified that there is no plagiarism in
this work. I further attest that I am fully responsible for its content.
Date: (Signature of the Student)
Place: Jaipur, Rajasthan Mohammed Faizan
B.A.L.L.B IVSEMESTER
iii
TABLE OF CONTENTS
CERTIFICATE .......................................................................................................................... .i
ACKNOWLEDGMENTS .......................................................................................................... ii
DECLARATION ...................................................................................................................... iii
TABLE OF CONTENTS .......................................................................................................... iv
LIST OF ACRONYMS AND ABBREVIATIONS .................................................................... v
TABLE OF CASES ................................................................................................................... vi
TABLE OF STATUTES .......................................................................................................... vii
CHAPTER-I………………………………………………………………………………..8-10
CHAPTER-II……………………………………………………………………………..11-13
CHAPTER-III…………………………………………………………………………….14-25
CHAPTER-IV…………………………………………………………………………….16-17
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LIST OF ACRONYMS AND ABBREVIATIONS
Abbreviation Full Form
Art. Article
AIR All India Reporter
SCC Supreme Court Cases
SC Supreme Court
HC High Court
Const. Constitution
GoI Act, 1935 Government of India Act, 1935
PIL Public Interest Litigation
J. Justice
CJ Chief Justice
CrPC Code of Criminal Procedure, 1973
IPC Indian Penal Code, 1860
UOI Union of India
WLR Weekly Law Reports
ICJ International Court of Justice
Ld. Learned
R. Respondent
A. Appellant
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TABLE OF CASES
S. No. Case Name Citation
1 In re, Berubari Union and Exchange of Enclaves AIR 1960 SC
845
2 In re, Kerala Education Bill AIR 1958 SC
956
3 In re, The Special Courts Bill AIR 1979 SC
478
4 In re, Cauvery Water Disputes Tribunal AIR 1992 SC
522
5 In re, Under Article 143, Constitution of India AIR 1965 SC
(Special Reference No. 1 of 1964 – Sea Customs Act case) 1754
6 In re, Delhi Laws Act AIR 1951 SC
332
7 In re, Natural Resources Allocation, Special (2012) 10 SCC 1
Reference No. 1 of 2012
8 In re, Presidential Reference on 2G Spectrum (2012) 3 SCC 1
9 In re, Ram Janma Bhoomi-Babri Masjid (Ismail AIR 1995 SC
Faruqui Presidential Reference) 605
10 In re, Keshav Singh’s Case AIR 1965 SC
745
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TABLE OF STATUTE
S. No. Statute Relevant Provisions
1 Constitution of India, Article 143 – Power of the President to
1950 consult the Supreme Court
2 Government of India Section 213 – Power to obtain the opinion
Act, 1935 of the Federal Court
3 Supreme Court Rules, Rules relating to Presidential References
2013
4 Code of Civil Relevant provisions for procedural
Procedure, 1908 guidance in advisory opinions
5 Code of Criminal Procedural aspects in criminal references,
Procedure, 1973 where applicable
6 Indian Evidence Act, Principles applied during advisory
1872 proceedings
7 Special Courts Subject of Presidential Reference in In re,
Act, 1979 Special Courts Bill case
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CHAPTER:1
INTRODUCTION
1.1 The Supreme Court in India’s Constitutional Scheme
The Supreme Court of India, established on 28 January 1950, is the highest judicial authority
in the country, entrusted with the task of protecting the Constitution and upholding the rule of
law. Its jurisdiction is multi-dimensional, encompassing original jurisdiction, appellate
jurisdiction, and advisory jurisdiction. Among these, advisory jurisdiction under Article 143
occupies a special place, as it enables the Court to advise the President of India on questions
of law or fact that are of public importance. Unlike its adjudicatory functions, this jurisdiction
is consultative in nature and does not involve deciding disputes between parties.
In India’s constitutional structure, the three organs of the State – the Legislature, the Executive,
and the Judiciary – operate within their own spheres, yet are designed to function in harmony.
The advisory jurisdiction serves as a bridge between the Executive and the Judiciary, allowing
the President, as the head of the Union, to seek the legal wisdom of the Supreme Court in
matters of national significance.
1.2 Meaning and Nature of “Jurisdiction”
In legal terminology, jurisdiction refers to the authority of a court to hear and decide cases. The
Indian Supreme Court’s jurisdiction can be divided into:
Original jurisdiction – cases that can be heard directly without going through lower
courts.
Appellate jurisdiction – hearing appeals from lower courts and tribunals.
Advisory jurisdiction – giving opinions when sought by the President under Article
143.
Advisory jurisdiction does not involve a binding judgment but rather a considered opinion
rendered by the Court. It is a special power not commonly found in all jurisdictions, reflecting
the framers’ intent to give the Executive access to judicial counsel on complex legal matters.
1. Article 143(1) – The President may refer to the Supreme Court any question of law or
fact of public importance.
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2. Article 143(2) – The President must refer disputes arising out of treaties, agreements,
covenants, or engagements entered into before the commencement of the Constitution,
if such questions are of the nature specified therein
The inclusion of this provision in the Constitution was inspired by Section 213 of the
Government of India Act, 1935, which similarly empowered the Federal Court to render
advisory opinions. However, the scope of Article 143 was made broader to suit the
requirements of an independent and democratic India
1.4 Historical Context of Advisory Powers
The idea of seeking advisory opinions from the highest judicial body was not unique to India.
It was also found in Canada and Australia, where the Crown could seek opinions on legal issues
without formal litigation. In colonial India, the Federal Court of India (established in 1937)
could also exercise such powers under Section 213 of the Government of India Act, 1935. This
provision was largely retained in our Constitution with necessary modifications to reflect the
democratic spirit and sovereignty of the Republic of India.
In the Constituent Assembly debates, prominent leaders such as B.R. Ambedkar emphasised
the need for such a provision to assist the Executive in resolving complex constitutional and
legal questions without resorting to protracted litigation.
1.5 Relevance of Article 143 in Modern Governance
Article 143 plays a vital role in contemporary governance for several reasons:
Preventive Guidance: It allows potential legal disputes to be addressed before they
escalate into actual conflicts.
Policy Validation: It enables the Executive to test the constitutional validity of
proposed policies or legislation before implementation.
Constitutional Harmony: It ensures that the acts of the Executive are in consonance
with constitutional provisions, thereby avoiding friction with the Judiciary.
For instance, in the Kerala Education Bill reference (1958), the Supreme Court’s opinion
helped the government understand the constitutional limitations of certain provisions in the Bill
before they came into force.
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1.6 Distinction Between Advisory and Judicial Functions
While the Supreme Court’s judicial decisions are binding precedents under Article 141 of the
Constitution, advisory opinions do not have the same binding force. However, in practice, such
opinions carry significant persuasive value, and the Executive rarely ignores them.
The difference can be summarised as follows:
Judicial functions – involve disputes between parties, follow strict procedural rules,
and result in binding decisions.
Advisory functions – involve answering questions referred by the President, are
consultative, and not strictly binding.
This distinction ensures that advisory jurisdiction supplements rather than substitutes the
Court’s primary adjudicatory role.
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Chapter 2
Constitutional Basis of Advisory Jurisdiction
2.1 Introduction
The Constitution of India, 1950, is a carefully crafted document that not only prescribes the
structure of governance but also provides unique mechanisms to resolve complex legal,
constitutional, and policy questions. One such mechanism is the advisory jurisdiction of the
Supreme Court, enshrined under Article 143. This provision empowers the President of India
to seek the opinion of the Supreme Court on matters of law or fact that are of public importance
or that may arise out of a treaty, agreement, or enactment. Unlike the court’s regular
adjudicatory role in resolving disputes between parties, the advisory jurisdiction is consultative
in nature, enabling the highest court to guide the executive on contentious or unclear legal
issues.
The concept of advisory jurisdiction is not unique to India—it has its historical roots in the
colonial era under the Government of India Act, 1935, which provided a similar mechanism
for the Federal Court. However, the framers of the Indian Constitution modified the framework
to make it broader and more adaptable to the needs of an independent democratic nation.
2.2 Advisory Jurisdiction under the Government of India Act, 1935
The Federal Court, established in 1937 under the Government of India Act, was the first body
to exercise advisory jurisdiction in India. Section 213 of the Act stated that if it appeared to the
Governor-General that a question of law or fact had arisen which was of such a nature and of
such public importance that it was expedient to obtain the opinion of the Federal Court, he
could refer the question to the Court for consideration.
The Federal Court’s advisory opinions were not binding in the same manner as judgments in
regular disputes, yet they carried considerable persuasive value. For instance, in the In re: C.P.
and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, the Federal Court
provided an advisory opinion regarding the distribution of legislative powers between the
provincial and central legislatures, thereby influencing legislative and judicial interpretation in
subsequent years.
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This colonial provision established the precedent that the executive could seek the judiciary’s
guidance on complex legal questions without requiring an actual dispute between parties — an
approach that would be retained and refined in the Indian Constitution. 1
2.3 Incorporation into the Indian Constitution
When the Constituent Assembly deliberated on the adoption of advisory jurisdiction, debates
emerged over whether such a power might undermine the separation of powers or burden the
judiciary with hypothetical questions. Nevertheless, prominent members like Dr. B.R.
Ambedkar defended the provision, stating that it would serve as a constitutional safety valve,
allowing the President to obtain legal clarity on sensitive issues before taking executive action.2
Article 143 was thus incorporated in two parts:
Article 143(1): Allows the President to refer questions of law or fact of public
importance for the opinion of the Supreme Court.
Article 143(2): Allows the President to refer disputes arising out of pre-Constitution
treaties, agreements, and covenants.
Over time, this constitutional design ensured that the Supreme Court’s role extended beyond
traditional adjudication into the realm of constitutional advisory, enabling it to contribute to
governance without directly engaging in policy-making.
2.4 Early Post-Independence Applications
In the early years after Independence, Article 143 was invoked to resolve pressing
constitutional doubts. A landmark example is the In re: Kerala Education Bill, 1957, where
the President sought the Court’s opinion on the validity of certain provisions affecting minority
educational institutions. The Court’s advisory opinion in this case not only clarified
constitutional provisions but also set precedents for interpreting minority rights under Article
30 of the Constitution3
1
M.P. Jain, Indian Constitutional Law, LexisNexis, 8th ed., 2018, p. 132.
2
B. Shiva Rao, The Framing of India’s Constitution, Vol. V, Universal Law Publishing, 2004, p. 456.
3
In re: Kerala Education Bill, AIR 1958 SC 956.
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2.5 Significance of Retaining Historical Continuity
The retention of advisory jurisdiction in the Indian Constitution reflects a deliberate effort to
ensure that the highest court could serve as a guide for the executive in navigating complex
constitutional questions. The colonial origins of this power did not diminish its relevance;
instead, it provided a tested model that could be adapted for a democratic and sovereign India.
Moreover, this continuity ensured that the judiciary remained an essential partner in upholding
constitutionalism, even in matters where no formal litigation existed.
From a historical perspective, the advisory jurisdiction represents an important constitutional
bridge between pre-independence governance mechanisms and post-independence
constitutional democracy⁴. It has allowed for legal foresight, reduced potential disputes, and
strengthened the institutional dialogue between the executive and judiciary.
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Chapter 3
Constitutional Provisions Governing Advisory Jurisdiction
3.1 Introduction
The advisory jurisdiction of the Supreme Court finds explicit mention in Article 143 of the
Constitution of India. This Article is a distinctive constitutional device that enables the
President to refer specific legal or factual questions to the apex court for its opinion. Unlike the
Court’s original, appellate, or writ jurisdictions, the advisory jurisdiction is not triggered by the
initiation of proceedings by disputing parties. Instead, it operates upon a reference by the
President, making it a direct link between the executive head of the State and the judiciary 4
This chapter examines the detailed structure of Article 143, the nature of references permissible
under its clauses, and the procedural framework through which the Supreme Court renders such
opinions.
3.2 Text and Structure of Article 143
Article 143 is divided into two distinct clauses:
1. Article143(1):
This clause empowers the President to refer to the Supreme Court any question of law
or fact that he considers to be of public importance or that is otherwise expedient to
obtain the Court’s opinion on. Such matters could range from constitutional
interpretation to complex issues of national governance.
o The Court, after considering the matter, reports its opinion to the President.
o However, the Court is not bound to give its opinion in every case referred; it
may decline if the matter is inappropriate for advisory adjudication.
2. Article143(2):
This provision applies to disputes arising out of any treaty, agreement, covenant,
engagement, sanad, or similar instrument executed before the commencement of the
Constitution. It allows the President to refer such matters for the Court’s opinion when
such disputes have arisen or are likely to arise between the Government of India and
one or more states or between the Government of India and the Government of any
state before the Constitution came into force5.
4
M.P. Jain, Indian Constitutional Law, LexisNexis, 8th ed., 2018, p. 1315.
5
H.M. Seervai, Constitutional Law of India, 4th ed., Universal Law Publishing, 2013, p. 2118.
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3.3 Nature of the Opinion under Article 143
The opinions rendered by the Supreme Court under Article 143 are advisory in nature,
meaning they are not binding upon the President or the Government. However, in practice,
such opinions carry immense weight because they emanate from the apex judicial authority.
The government has generally adhered to them to maintain constitutional harmony and public
confidence in governance.
The non-binding character is rooted in the idea that the advisory jurisdiction does not produce
a judgment inter partes (between parties) but rather a consultative statement aimed at guiding
policy decisions. Yet, once delivered, these opinions often become significant precedents for
future legal interpretation.
3.4 Scope of Questions That Can Be Referred
Under Article 143(1), the President may refer:
Questions of law — such as the interpretation of constitutional provisions, statutory
validity, or questions involving fundamental rights.
Questions of fact — particularly when such facts have constitutional or legal
implications of national significance.
Mixed questions of law and fact — where factual circumstances require legal
clarification.
However, the Supreme Court has sometimes declined to render opinions when the question is
too vague, hypothetical, or lacking in concrete public importance. For example, in In re:
Cauvery Water Disputes Tribunal, the Court initially refrained from advising on matters
pending adjudication elsewhere, stressing the need to avoid judicial overreach.
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Chapter 4
Landmark Cases on Advisory Jurisdiction under Article 143
4.1 Introduction
The interpretation and scope of Article 143 have been shaped primarily through judicial
pronouncements of the Supreme Court. Over time, several Presidential References have led to
landmark opinions, which not only clarify the constitutional boundaries of advisory jurisdiction
but also contribute significantly to constitutional law and governance in India. These decisions
illustrate the balance between the court’s role as an advisory body and as the final interpreter
of the Constitution.
4.2 In re, Berubari Union and Exchange of Enclaves (1960)
One of the earliest and most significant Presidential References under Article 143 was In re,
Berubari Union and Exchange of Enclaves. The matter arose from the Nehru–Noon Agreement
between India and Pakistan, concerning the transfer of certain territories. The President sought
the Court’s opinion on whether such a transfer required a constitutional amendment.
The Supreme Court, in its advisory opinion, held that the implementation of the agreement
would involve the cession of Indian territory, and therefore, it could only be effected through
a constitutional amendment under Article 368. This decision firmly established that even a
seemingly executive matter involving foreign affairs could require parliamentary ratification if
it affected constitutional provisions6.
4.3 In re, Special Courts Bill (1979)
The Special Courts Bill was referred to the Supreme Court to ascertain its constitutional
validity before enactment. The Bill proposed the establishment of special courts for the speedy
trial of certain offences committed during the Emergency period (1975–77).
In its advisory opinion, the Court upheld the constitutional validity of the Bill but stressed that
special courts must conform to the principles of natural justice and the fundamental rights
guaranteed under Part III of the Constitution². This case demonstrated how the advisory
jurisdiction could be used proactively to prevent constitutional conflicts before a law comes
into force.
6
In re, Berubari Union and Exchange of Enclaves, AIR 1960 SC 845.
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4.4 In re, Keshav Singh (1965)
This Presidential Reference concerned the delicate balance between the privileges of state
legislatures and the powers of the judiciary. The case arose when Keshav Singh, a citizen, was
committed to prison by the Uttar Pradesh Legislative Assembly for contempt. A conflict arose
when the High Court intervened.
The Supreme Court’s advisory opinion laid down important principles on the separation of
powers, holding that legislative privilege cannot override fundamental rights and judicial
review³. This marked a significant assertion of constitutional supremacy over legislative
privilege.
4.5 In re, Cauvery Water Disputes Tribunal (1992)
In a highly sensitive matter involving interstate water sharing between Karnataka and Tamil
Nadu, the President referred questions regarding the binding nature of the Cauvery Water
Disputes Tribunal’s interim order to the Supreme Court.
The Court opined that the Tribunal’s order was binding on the parties and enforceable under
law⁴. This case illustrated the role of Article 143 in resolving politically sensitive disputes that
required an authoritative legal interpretation to prevent further conflict.
4.6 Analysis of Judicial Approach
The cases discussed above reveal several themes in the Court’s exercise of advisory
jurisdiction:
Proactive Conflict Prevention: By providing opinions before potential disputes
escalate, as seen in the Special Courts Bill case, the Court acts as a constitutional
safeguard.
Strengthening Federalism: In cases like Cauvery Water Disputes, the Court’s role
under Article 143 has helped maintain the delicate balance between the Union and the
States.
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Conclusion
The advisory jurisdiction of the Supreme Court under Article 143 of the Constitution of India
represents a unique constitutional mechanism that bridges the gap between the judiciary and
the executive. By empowering the President to seek the Court’s opinion on questions of law or
matters of public importance, the framers of the Constitution envisioned a system where legal
clarity could be obtained without waiting for disputes to escalate into contentious litigation.
From its early interpretation in the Berubari Union case to more contemporary matters such as
the Cauvery Water Disputes, the Supreme Court’s advisory opinions have played a decisive
role in shaping the course of constitutional governance. These opinions, while non-binding,
carry immense persuasive authority, influencing not only the political branches of government
but also public perception and legal scholarship.
The significance of Article 143 lies in its preventive and consultative nature. It allows
constitutional ambiguities to be resolved before they lead to institutional conflicts, fosters
cooperative federalism, and safeguards the constitutional balance of power. However, the
selective use of this provision—often limited to rare and exceptional situations—indicates that
it is treated as a constitutional tool of last resort rather than a routine mechanism of governance.
In essence, the advisory jurisdiction reflects the judiciary’s role not merely as an adjudicator
of disputes but also as a guardian and guide of constitutional values. Its continued judicious
use ensures that the principles of constitutionalism, rule of law, and democratic accountability
remain at the forefront of India’s legal and political framework. As India’s governance
challenges grow in complexity, the relevance of Article 143 as a stabilizing force is likely to
remain undiminished.
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Bibliography
BOOKS
Basu, Durga Das. Commentary on the Constitution of India. 9th ed., LexisNexis,
2018.
Seervai, H.M. Constitutional Law of India. 4th ed., Universal Law Publishing, 2013.
Bakshi, P.M. The Constitution of India. 17th ed., Universal Law Publishing, 2020.
WEBSITES
Supreme Court of India. Judgments and Orders. https://www.sci.gov.in
Legislative Department, Ministry of Law and Justice. The Constitution of India.
https://legislative.gov.in
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