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Maarg Manthan · Topic 17.6

Advisory Jurisdiction of the Supreme Court (Article 143)

Indian Polity › Higher Judiciary: Supreme Court and High Courts · Topic 17.6

Article 143 lets the President refer a question of law or fact of public importance, or a pre-constitution treaty dispute, to the Supreme Court for its non-binding advisory opinion; fifteen references have been made since 1951.

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Advisory Jurisdiction of the Supreme Court (Article 143) - Indian Polity - MaargX UPSC Maarg Manthan

At a Glance

  • What it is The President’s power to seek the Court’s opinion
  • Article Article 143
  • Binding No; the opinion is advisory
  • References so far Fifteen
  • Exam link UPSC Prelims, Polity: Higher Judiciary

Where Does It Fit?

This is the sixth topic of the category on the Higher Judiciary. Article 143 gives the President a way to obtain an authoritative legal opinion from the Supreme Court. It is a jurisdiction the American Supreme Court does not have.

Two Categories of Reference

Article 143 authorises the President to seek the opinion of the Supreme Court in two categories of matters: on any question of law or fact of public importance which has arisen or is likely to arise; and on any dispute arising out of a pre-constitution treaty, agreement, covenant, engagement, sanad or similar instrument excluded from the Court’s original jurisdiction. In the first case, the Supreme Court may tender or may refuse to tender its opinion. In the second case, it must tender its opinion. References are decided by a Bench of at least five judges.

Nature of the Opinion

In both cases, the opinion is only advisory and not a judicial pronouncement. It is therefore not binding on the President, who may follow it or not. Its value is that it gives the government an authoritative legal opinion on a matter it is to decide. The Attorney General represents the Government in any reference under Article 143.

The Fifteen References

No. Reference Year
1 Delhi Laws Act 1951
2 Kerala Education Bill 1958
3 Berubari Union 1960
4 Sea Customs Act 1963
5 Keshav Singh’s case relating to legislative privileges 1964
6 Presidential Election 1974
7 Special Courts Bill 1978
8 Jammu and Kashmir Resettlement Act 1982
9 Cauvery Water Disputes Tribunal 1992
10 Rama Janma Bhumi case 1993
11 Consultation process to be adopted by the Chief Justice of India 1998
12 Legislative competence of Centre and states on natural gas and liquefied natural gas 2001
13 Election Commission’s decision on deferring the Gujarat Assembly elections 2002
14 Punjab Termination of Agreements Act 2004
15 2G spectrum case verdict and mandatory auctioning of natural resources 2012

Role of the Attorney General and the Bench

The Attorney General of India represents the Government of India in any reference made by the President to the Supreme Court under Article 143. The reference is heard by a Bench of at least five judges, like all constitutional cases. After hearing, the Court gives its opinion, which is placed before the President. The President is not bound to act on the opinion, but an opinion can have lasting effect, as with the reference on the consultation process to be adopted by the Chief Justice of India, which led to the collegium of four seniormost judges for appointments.

Comparison of the Three Court Powers

Power Nature Binding?
Advisory (Article 143) Opinion on a presidential reference No
Appellate (Articles 132-136) Judgment on appeal Yes, binding on parties and all courts under Article 141
Original (Article 131) Judgment in federal disputes Yes

The table shows why the advisory power is special: unlike judgments, the opinion carries persuasive value but no enforceable command. A judgment in an appeal or a federal suit binds the parties and, being law declared by the Supreme Court, all courts in India. An advisory opinion, however, does not bind even the President who sought it.

Why It Matters

The advisory jurisdiction lets the executive resolve doubts on legal and constitutional questions before acting, without having to wait for a case to arise. The Third Judges case (1998), which reshaped the collegium, arose from a presidential reference under Article 143. Because the opinion is not binding, the executive retains the final decision, but in practice the government seeks the opinion on questions of public importance on which it wants clarity. Article 143 is also listed in the President’s judicial powers.

Point Indian Supreme Court American Supreme Court
Advisory jurisdiction Yes No
Binding? No, advisory only Not applicable
Who can refer The President Not applicable

Why Is This Topic Important?

  • References The list of cases is asked often
  • Binding nature Statement-based questions
  • Comparison with USA Distinguishing feature

What Came Next?

The next topic covers the Supreme Court as a court of record under Article 129.

Key People and Terms

  • Advisory jurisdiction Giving opinions on a reference
  • Reference President’s question to the Court
  • Pre-constitution treaty Matters excluded from original jurisdiction
  • Consultative jurisdiction Another name for advisory
  • Bench of five Minimum for references

Exam Corner

Points to Remember

  • Article 143; two categories.
  • First case optional, second case mandatory.
  • Opinion not binding.
  • Fifteen references so far.

Do Not Confuse With

  • Advisory and original jurisdiction Opinion versus judgment
  • First and second category May refuse versus must tender
  • Reference and review Opinion versus reconsideration

Memory Hook

The President asks, the Court may answer, the opinion advises, nobody is bound.

Mains Angle

Questions on this topic usually ask about the value of advisory opinions. Use these points to add depth.

  • Preventive legal advice Before disputes arise
  • Court’s discretion May decline the first category
  • Notable references Berubari, Rama Janma Bhumi, 2G
  • Non-binding Executive keeps the choice

A Question You May Face

An original practice question, not a past paper question.

“Discuss the advisory jurisdiction of the Supreme Court with examples.”

How to Answer

  1. Introduction Article 143.
  2. Categories Two.
  3. Nature Not binding.
  4. Conclusion Use in practice.

GS Relevance

Prelims: Indian Polity, Supreme Court. GS Paper 2: Judiciary and executive.

Frequently Asked Questions

What is the advisory jurisdiction of the Supreme Court?

Under Article 143, the President can seek the Supreme Court’s opinion on a question of law or fact of public importance, or on a dispute arising out of a pre-constitution treaty or similar instrument. The Court gives an advisory opinion, not a judgment.

Is the Supreme Court bound to give its opinion?

In the first category, on questions of law or fact of public importance, the Court may tender or refuse to tender its opinion. In the second category, on pre-constitution treaty disputes, the Court must tender its opinion to the President.

Is the Supreme Court’s advisory opinion binding?

No. In both cases the opinion is only advisory and not a judicial pronouncement, so it is not binding on the President, who may follow it or not. It nevertheless gives the government an authoritative legal opinion.

How many presidential references have been made?

The President has made fifteen references so far, from the Delhi Laws Act in 1951 to the 2G spectrum case verdict and the question of auctioning natural resources in 2012, including Berubari Union (1960) and Rama Janma Bhumi (1993).

Does the American Supreme Court have advisory jurisdiction?

No. The American Supreme Court has no advisory jurisdiction. This is one of the differences between the Indian and American Supreme Courts, along with the plenary special leave power of the Indian Court and its wider appellate role.

PYQ Practice — Statement Analysis

1 The Supreme Court must always give its opinion on a presidential reference.
False

It may refuse the first category.

2 The advisory opinion binds the President.
False

It is advisory.

3 The first reference under Article 143 was in 1951.
True

Delhi Laws Act.

4 The American Supreme Court has advisory jurisdiction.
False

It has none.

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