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Advisory Jurisdiction of Supreme Court

Introduction

The Supreme Court of India is the apex court in India. It holds the power to hear appeals from any courts or tribunals under it. In independent India, the Supreme Court was established on 28th January, 1950 and has a single integrated judicial system, with a three-tier structure. The powers and jurisdiction of the Supreme Court are laid down in the Constitution of India. Since it has the highest authority to uphold the constitution, uphold the rule of law and the rights and duties of its citizens, it is referred to as the Guardian of the Constitution. Chapter IV of the constitution enumerates upon ‘The Union Judiciary’ of the nation. Article 124 to Article 147 contain all the provisions relating to the Union Judiciary of the country. Article 143 of the Constitution prescribes the Advisory Jurisdiction of Supreme Court.

Structure of Judiciary in India

The Indian Constitution by providing for a single integrated system of Courts to administer Union as well as State laws has the apex court i.e., the Supreme Court of India at the top. Below the Supreme Court of India lie the High Courts of each State or group of States. Below those lie other Subordinate Courts. Some states even have Panchayat Courts like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri, etc. to decide civil and criminal disputes that are of petty and local nature.

Every State is bifurcated into judicial districts that are presided over by a District and Sessions Judge, such are the principal civil courts of original jurisdiction who are free to try all offences. The highest judicial authority in a district is the Sessions Judge. Likewise, the criminal judiciary comprises the Chief Judicial Magistrates and Judicial Magistrates of First and Second Class.

Composition of the Supreme Court of India

As per article 124 (1) of the Indian Constitution, the Supreme Court must consist of a Chief Justice and 7 other Judges, giving the Parliament the discretion to increase the number. Due to an increase in workload, Parliament began increasing this number. In the initial stage, all the judges of the Supreme Court would sit together for hearings. But as cases started piling up and the number of judges were increased, they began sitting in smaller Benches of 2 or 3, coming together in larger benches of 5 or more only for cases that required them to do so or to settle a difference of opinion or controversy.

Independence of Judiciary in India

Although, the country does not strictly follow the Separation of powers like the United States, the framers of the Constitution realized and recognized the need for having a strong and independent judiciary. Judiciary is regarded as the Guardian of the Constitution. It is the final interpreter of the Constitution. Independence and impartiality of the judiciary to serve the constitutional goals is of utmost importance. In order to do so, the Judges need to act fairly and independently, free from any kind of bias or influence. The judiciary must not only be free from the influence of the other organs of the state, but also from any kind of prejudices. Independence of Judiciary is its essence and efforts must be made to ensure it is not diluted no matter what the circumstance is. Independence of Judiciary is not absolute in India, it cannot be said that it is being followed in its strict sense. Such instances can be witnessed during the long battle between the Judiciary and the Parliament, or when the judicial review was put out of the scope of the judiciary by insertion of Article 31 B, when the fourth senior most judge of the Apex Court was made the Chief Justice instead of the senior most judge, etc.

Jurisdiction of the Supreme Court

The apex court is vested with original, appellate and advisory jurisdiction. Its exclusive original jurisdiction exercised in case of dispute between the Government of India and any of the States or between the Government of India and any of the states on one side and any of the other States on the other or between States themselves, and also when the dispute involves any question of either law or of fact on which a legal right depends. Article 32 of the Constitution gives an extensive original jurisdiction to the Apex Court in matters of enforcement of Fundamental Rights as enshrined in Part III of the Constitution. This often referred to as the writ jurisdiction of the Supreme Court. The Court is vested with the power to transfer any civil or criminal case from one High Court to another High Court or from a Court subordinate to another State High Court. If a case revolves around the same or substantially the same questions of law, that are substantial questions of general importance, and is pending before the Supreme Court as well as one or more High Courts, the Apex Court may withdraw such a case pending before the High Court/s and dispose of all such cases itself. In accordance with the Arbitration and Conciliation Act, 1996 International Commercial Arbitration can also be initiated in the Supreme Court.

If the High Court grants or issues a certificate under Article 132(1), 133(1) or 134 of the Indian Constitution regarding any judgement, decree or final order of a High Court, where a substantial question of law has arisen and the interpretation of the Constitution would be required in such a matter, the appellate jurisdiction of the Supreme Court will be invoked. Such case could be either a civil or a criminal case. In case of a civil case, if the High Court of any state certifies that the case involves a substantial question of law of general importance, and that said question needs to be decided by the Supreme Court, the appeal would lie to the Supreme Court of India.

An appeal would lie in the Supreme Court, in case of a criminal case only if the High Court has on appeal reversed an order of acquittal of the accused and sentenced him to death or to life imprisonment or imprisonment for minimum ten years, or when the High Court has withdrawn for trial a case from any Court subordinate to its authority before itself and in the said trial convicted the accused and sentenced him to death or life imprisonment or imprisonment for minimum ten years, or simply if the High Court is of the opinion that the case is apt for an appeal to the Apex Court. Furthermore, the Parliament possesses the authority to confer more powers to the Apex Court to hear appeals from criminal proceeding of a High Court. The appellate jurisdiction of the Supreme Court of India is quite vast, it has appellate jurisdiction over all courts and tribunals and may grant special leave to appeal under Article 136. The Supreme court also has Revisory Jurisdiction where it may review its own judgements to remove an error.

Advisory Jurisdiction of the Supreme Court of India

Article 143 of the Constitution mentions the power of the President to consult the Supreme Court. It states that if at any given time, the President thinks that a question of law or fact has arisen, or may arise in the future and may be of such nature which may be regarded as of public importance and where it would be suitable to obtain the opinion of the Supreme Court on it, the President may in such situation, refer the question to the Supreme Court for consideration. Then the court may after such hearing if it thinks fit, report its opinion to the President.

Therefore, the President of India asks for the opinion of the Supreme Court of India on any question of law or fact that may be of public importance and may need any advice from the Apex Court. This is also referred to as the Presidential Reference. The scope, as laid down under this Article, is quite extensive. As long as the matter on which the President of India seeks to take the Supreme courts opinion on, is on a question of law or fact which has arisen or may arise in future or is of public importance which makes it absolutely necessary to take the opinion of the Apex Court, the President is free to do so. It is pertinent to note that Article 143 does not impose an obligation upon the Supreme Court of India to give its opinion.

The usage of the word ‘may’ in the aforementioned Article, gives the Supreme Court the discretion to give or not give its opinion on that particular matter, Hence, it may decline to render its opinion when it does not deem fit. Nonetheless, Article 143 (2) states that the President may refer a dispute of the nature as laid down in (1), to the Supreme Court, and in such cases, the Supreme Court would be bound to render its opinion due to the usage of the word ‘shall’. In Re Kerala Education Bill, 1957 the Bill when reserved for the consideration of the President was referred to the Supreme Court for its opinion pertaining to its validity.

The Supreme Court held in the Re Kerala Education Bill, 1957 that the use of the word ‘may’ as given in Article 143(1), is contrary to the use of the word ‘shall’ in sub section (2) of the same article and depicts that in a reference under Article 143(2) the Supreme Court is under an obligation to answer the questions, on the other hand, under Article 143(1) there lies a discretion upon the Supreme Court to answer or not to answer the questions before it. In the famous case of Ismail Faruqui v. Union of India[i], the Apex Court held that the Presidential reference where it is referring the matter to the supreme court seeking its opinion on whether a temple existed at the site of Babari Masjid before it was built was unnecessary and against secularism, hence, it does not need to be answered.

Cases where Reference were made

In Keshav Singh v. Speaker of Legislative Assembly[ii],  Keshav Singh was arrested for the charge of contempt of the Uttar Pradesh State Assembly. The Allahabad High Court granted him bail. This caused a lot of chaos and the assembly was agitated with the Allahabad High Court, and issued the summon against the judges and advocate. Consequently, the judges filed a petition in the High Court restraining the assembly from issuing warrants against them. After the President referring the matter to the Supreme Court, the apex court held that where a  judge entertains a petition challenging an order of the legislature imposing any penalty on the petitioner for its contempt, he does not commit contempt of that legislature; the legislature would not have the competence to start a proceeding against that particular judge.

Even in the Cauvery Tribunal Dispute[iii], President made a reference to the Supreme Court of India, where the Supreme Court was of the view that the Ordinance passed by the Karnataka Government was in violation of the Constitution because the decision given by the Tribunal was protected under Article 262 of the Constitution of India.

The advisory jurisdiction of the supreme court has been exercised in many other cases, like in the case of Re Sea Customs Act, the validity of the Sea Customs Bill was taken into consideration with reference to Article 288 of the Constitution. Further, in Re Presidential Bill, consideration with respect to Presidential Election was sought.

Conclusion

The advisory jurisdiction of the Supreme court is a well debated topic due to the use of “may’ and ‘shall’ in the Article. Nevertheless, what must be kept in mind is that this power of the President to refer to the Supreme Court must not be applied without any rationale.

References

https://main.sci.gov.in/jurisdiction

https://www.legalbites.in/jurisdiction-of-supreme-court-india/

http://www.legalserviceindia.com/legal/article-576-advisory-jurisdiction-of-the-supreme-court-is-the-court-bound-to-give-its-opinion.html

https://www.lawctopus.com/academike/advisory-jurisdiction-article-143/

http://www.legalserviceindia.com/legal/article-2043-advisory-jurisdiction.html

https://main.sci.gov.in/constitution

[i]Ismail Faruqui v. Union of India, (1994) 6 SCC 360

[ii]Keshav Singh v. Speaker of Legislative Assembly, AIR 1965 All 349

[iii]The Matter of Cauvery Water Dispute Tribunal, Re, AIR 1992 SC 522

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Aayushi Mittra

Aayushi Mittra is a Fourth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of company law but also explore various other fields of law like IPR, Cyber Law, Real Estate, Tech Law and Sports Law. Apart from academics, she immensely enjoys participating in moots, MUNs and article writing competitions.