POWER OF PRESIDENT TO CONSULT SUPREME COURT
Till now, the President
has referred questions of constitutional validity matters to the
Supreme Court on more than ten occasions. The nature of references
has been the constitutionality of an existing law, the constitutionality
of a Bill presented for the President's assent, the implementation
of an international agreement, the constitutionality and vires
of a draft Bill to be moved in Parliament, the respective jurisdiction
of the Legislature and the superior courts in relation to the
power of the former to punish for contempt, interpretation of
constitutional provisions relating to election of the President,
powers of an inter-state water disputes tribunal and power of
a State to legislate in regard to such tribunal, whether a Hindu
temple or religious structure existed at a particular place ,
and consultation between Chief Justice of India and his brother
judges in the matter of appointments of Supreme Court and High
Courts judges and the transfer of the latter.
The references
made by the President to the apex court so far have been on the
constitutionality of the Delhi Laws Act, 1912 , the Kerala Education
Bill, 1959, Implementation of the Indo-Pakistan Agreement on Berubari,
the Sea Customs Act, 1878, the Presidential Election, 1974, the
Special Courts Bill, 1979, the Cauvery Water Disputes Tribunal,
the Ayodhya matter , the Jammu & Kashmir Resettlement Bill,
the Judges case and the Constitutionality of the Election Commission's
Orders on the Gujarat Elections filed on August 19, 2002.
Under Article
143(1) of the Constitution, if at any time it appears to the President
that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that it
is expedient to obtain the opinion of the Supreme Court upon it,
he may refer the question to that court for consideration and
the court may, after such hearing as it thinks fit, report to
the President its opinion thereon.
The President
may, notwithstanding anything in the proviso to Article 131, refer
a dispute of the kind mentioned in the said proviso to the Supreme
Court for opinion and the Supreme Court shall, after such hearing
as it thinks fit, report to the President its opinion thereon.
This Article confers
upon the President the power to consult the Supreme Court upon
any question of public importance as the President may think fit,
whether of law or of fact and whether or not such questions relate
to the functions and duties of the President. The President's
opinion as to the question being of public importance is not open
to question.
It is not necessary
that the question on which the opinion of the court is sought
must have arisen actually. It is competent for the President to
make a reference at an anterior stage, namely when he is satisfied
that such question ' is likely to arise'.
Clause (1) of
Article 143 empowers the President to refer to the Supreme Court
a question of law or fact which has arisen or is likely to arise.
In case, the court has already pronounced a judgement on a question
of law then it can not be said that a doubt exist regarding that
question. The President can refer a question of law only when
the Supreme Court has not decided it. The advisory jurisdiction
under Article 143 is not an appellate jurisdiction of the Supreme
Court over its own decisions. The Executive has no power to ask
the Supreme Court to revise its decision.
While under Clause
(2), it is obligatory on the Supreme Court to entertain a reference
and to report to the President its opinion thereon, the Court
has, under Clause (1) a discretion in the matter and may, in a
proper case, decline to express any opinion on the questions submitted
to it. For example:
- Where the question referred to
is a political one, as distinguished from the constitutional
validity of a Bill or Act.
- Where it is incapable of being
answered.
- Where the question is hypothetical
or speculative or superfluous. But the mere possibility that
a pending Bill may undergo changes in course of legislation,
would not make the question of constitutionality of a pending
Bill hypothetical.
- Where it is vague--unless the
vagueness is cleared by the written briefs and submissions
of the parties before the court.
- Where the court considers that
the question does not arise in the facts and circumstances
of the case.
It
is for the President to determine what question should be referred,
including a pending Bill, on the other hand, the Supreme Court
cannot go beyond the question referred and discuss other questions
because any doubts may have arisen relating to them.
A reference on the
question of constitutionality of a pending Bill neither encroaches
upon the functions and privileges of the legislature, nor supplants
Article 31 of the Constitution.
If the reference raises
a question of law or fact which is justiciable. the court can
not refuse to give its opinion on the mere ground of expedience
or propriety.
It is neither obligatory
for the Supreme Court to give its opinion under Clause (1) whenever
the President makes a reference, nor for the President to act
upon the opinion pronounced by the Supreme Court.
In its advisory jurisdiction
under Article 143, the Supreme Court can not go into disputed
questions of fact, or inquire into the truth or otherwise the
recitals in the Order of Reference or the bona fides of the order
of reference.
The advisory opinion
given under the present Article is not a judgement and does not,
accordingly, furnish a good root of title such as might spring
from a judgement of the Supreme Court. Nevertheless, so far as
all courts in the territory of India (other than the Supreme Court)
are concerned, they would be bound by the opinion of the Supreme
Court even though it has been given under advisory jurisdiction.
The Supreme Court
itself would however remain free to re-examine and, if necessary,
to overrule the view taken in an opinion under Article 143(1).
But it would not entertain argument on points covered by the Opinion
on the Reference.
The Supreme Court,
in the Cauvery Water case, has expressly refrained from recording
an opinion on the question whether its opinion given under Article
143 is binding on all courts.
