Discuss the powers of the President to consult Supreme Court under Article 143 of the Constitution. Whether the Supreme Court can decline to answer a reference? Explain.

Questions: Discuss the powers of the President to consult Supreme Court under Article 143 of the Constitution. Whether the Supreme Court can decline to answer a reference? Explain. [UPJS 2003]

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Answer

The Supreme Court of India enjoys an Advisory Jurisdiction. This power has been vested upon the Supreme Court by Article 143 of the Indian Constitution. Article 143 gives power to the President to consult the Supreme Court when there arises a question of law or question of fact.

The scope of Article 143(1) which talks about the President’s power to refer a matter of public importance to the Supreme Court is quite broad. There is no condition that the President can refer only to such questions pertaining to his powers, functions, and duties or those of the Central Government. The President can seek the opinion of the Supreme Court on any question of law or fact which appears to him to be of such a nature and of such public importance that it is expedient to obtain the Court’s opinion. The requirements for the President to seek its opinion from the Supreme Court are as follows:

• A question of law or fact has arisen or is likely to arise.
• The nature of the question of law is such that it gains more public importance which makes it imperative to get the opinion of the Supreme Court.

If these requirements are fulfilled, it will justify the reference of the President to the Supreme Court. The use of the word ‘may’ in Article 143(1), does not impose any obligation on the Supreme Court to give its opinion on any question of law or fact referred to it by the President. It may refuse to give its opinion when it feels that it is purely socio-economic or political questions having no constitutional significance.
It has discretion in the matter and may, in a proper case, for good reasons, decline to express any opinion on the question submitted to it. But however, in Article 143(2), the word ‘shall’ has been used. Hence the Supreme Court is constitutionally obligated to give its opinion on a reference made by the President. Also, the President cannot ask the Supreme Court to reconsider its previous decisions. It cannot convert its advisory jurisdiction into appellate jurisdiction.

In a landmark judgment in Ismail Faruqui v. Union of India [(1994) 6 SCC 360], the five-judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favored one religious community and therefore, does not require to be answered.

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