Presidential References and Advisory Jurisdiction of the Supreme Court of India

The Supreme Court of India, under Article 143 of the Constitution, has been entrusted with advisory jurisdiction, enabling the President of India to seek the Court’s opinion on matters of law or fact that are of public importance or likely to arise in the course of governance. This mechanism plays a crucial role in constitutional interpretation and institutional coordination between the executive and the judiciary. Since independence, the Court has responded to such references with scholarly opinions, even though these are not binding, unlike regular judgments.

Over the past 75 years, the Supreme Court has rendered advisory opinions in 15 instances, each involving significant constitutional or statutory interpretation. A summary of these references and the Court’s opinions is presented below.

1. In Re: The Delhi Laws Act, 1912 (1951)

Bench: 7 Judges
Key Issue: Limits of legislative delegation
Court’s View: The Court unanimously held that the legislature cannot delegate its essential legislative functions such as formulating policy and enacting primary legislation. However, it may delegate auxiliary functions. The need for delegation was recognized in light of the welfare state. Judges differed on the permissible scope of such delegation.

2. In Re: Kerala Education Bill, 1957 (1958)

Bench: 7 Judges
Key Issue: Whether the Bill affected minority rights under Article 30(1)
Court’s View: The Court found that the Bill vested unguided discretionary powers in the state government, potentially infringing on minority rights to manage educational institutions. It also clarified that Article 143 references must stay confined to the questions posed and cannot delve into hypothetical or unrelated issues.

3. In Re: Berubari Union (1960)

Bench: 8 Judges
Key Issue: Whether the India–Pakistan land agreement needed a constitutional amendment
Court’s View: The Court held that ceding Indian territory to a foreign state requires an amendment under Article 368. Mere enactment under Article 3 was insufficient. This set a precedent on territorial adjustments with foreign nations.

4. In Re: The Sea Customs (Amendment) Bill, 1962 (1963)

Bench: 9 Judges
Key Issue: Whether the Bill violated Article 289(1), granting state immunity from union taxation
Court’s View: In a narrow majority, the Court held that Article 289(1) did not apply to indirect taxes, like customs and excise duties. Thus, the proposed amendment did not violate the constitutional protection for states.

5. Special Reference No. 1 of 1964 (Keshav Singh’s Case)

Bench: 7 Judges
Key Issue: Whether judicial intervention in a state assembly’s contempt proceedings was justified
Court’s View: The Supreme Court held that legislatures cannot exercise contempt powers to punish judges or interfere with judicial orders. The High Court was within its rights to issue a stay order, under the wide ambit of Article 226.

6. Special Reference No. 1 of 1974 (Presidential Elections)

Bench: 7 Judges
Key Issue: Procedure for electing the President amid dissolution of state assemblies
Court’s View: Dissolved assemblies could not participate in the electoral college. The incumbent President may continue until the successor assumes office, as provided in Article 56(1)(c).

7. In Re: The Special Courts Bill, 1978

Bench: 7 Judges
Key Issue: Constitutional validity of creating Special Courts
Court’s View: The Court upheld Parliament’s authority to establish Special Courts. The appeal provision directly to the Supreme Court was not seen as compromising judicial independence. It also reaffirmed that opinions under Article 143, though advisory, should guide lower courts.

8. In Re: J&K Resettlement Bill, 1980

Bench: 5 Judges
Key Issue: Whether the Resettlement Bill was unconstitutional
Court’s View: As the Bill had already become law in 1982, the Court declined to give an opinion, deeming it inappropriate to review an enacted law under advisory jurisdiction. It reiterated that advisory power does not include striking down legislation.

9. In Re: Cauvery Water Disputes Tribunal (1991)

Bench: 5 Judges
Key Issue: Constitutionality of Karnataka’s law negating the Tribunal’s interim award
Court’s View: The Court ruled that state legislatures cannot nullify tribunal decisions. The Karnataka Act was ultra vires. Article 143 cannot be invoked if the matter has been previously adjudicated.

10. Special Reference No. 1 of 1994 (Ismail Faruqui Case)

Bench: 5 Judges
Key Issue: Existence of a temple beneath Babri Masjid
Court’s View: The Court declined to answer the question, as it was purely political and lacked legal justiciability. The revival of pending civil suits rendered the reference unnecessary.

11. Special Reference No. 1 of 1998 (Third Judges Case)

Bench: 9 Judges
Key Issue: Clarifications on the Collegium system of judicial appointments
Court’s View: The Court expanded the Collegium to five senior-most judges and held that consultation with the Chief Justice requires plurality of judges. Judicial review of transfers was permitted in limited circumstances.

12. Special Reference No. 1 of 2001 (Natural Gas Regulation)

Bench: 5 Judges
Key Issue: Whether Gujarat could legislate on natural gas
Court’s View: The Court held that natural gas falls within the Union List, and states could legislate only on manufactured gas. The Gujarat Act was declared unconstitutional for exceeding legislative competence.

13. Special Reference No. 1 of 2002 (Assembly Dissolution & ECI Powers)

Bench: 5 Judges
Key Issue: Interplay between Articles 174 and 324 regarding holding elections
Court’s View: Article 174 does not apply to dissolved assemblies. The Election Commission operates independently under Article 324 and is not bound by legislative timeframes under Article 174.

14. Special Reference No. 1 of 2012 (2G Spectrum Case)

Bench: 5 Judges
Key Issue: Whether auctions are the only method for allocating natural resources
Court’s View: The Court ruled that auctions are not constitutionally mandatory for all natural resources. The method of allocation must comply with public interest and transparency, but auctions are not the sole mechanism.

15. In Re: Punjab Termination of Agreements Act, 2004

Bench: 5 Judges
Key Issue: Validity of Punjab’s unilateral termination of the 1981 water-sharing agreement
Court’s View: The Act was held unconstitutional as it sought to override judicial decisions and inter-state agreements. The legislature cannot nullify binding judicial decrees or unilaterally exit contractual obligations among states.

Conclusion

The Supreme Court’s advisory jurisdiction under Article 143 reflects the spirit of cooperative federalism and the Constitution’s adaptability to evolving legal and political contexts. Although not enforceable as precedent, advisory opinions are respected and often followed. These references have clarified contentious legal issues such as separation of powers, federal relations, judicial independence, and legislative competence.

Over time, the Court has also set self-imposed limitations: it refrains from answering purely political or hypothetical references, avoids fact-finding, and ensures that advisory jurisdiction is not misused to bypass judicial process under Articles 32 or 226. The evolution of this jurisdiction showcases the Court’s maturity and its balancing of legal integrity with executive consultation.