Advisory Jurisdiction of Supreme Court of India

The Supreme Court of India is not only the highest judicial forum in the country but also the final interpreter of the Constitution. Alongside its regular judicial powers such as appellate, original, and writ jurisdiction, the Constitution has bestowed upon it a unique and rather extraordinary function – the advisory jurisdiction under Article 143.

Unlike its conventional role where the Court settles disputes between parties, in advisory jurisdiction the Court steps into the role of a constitutional counsellor. It offers guidance to the President of India on questions of law or fact that carry public importance. This mechanism allows the Executive to obtain clarity on sensitive or complex constitutional issues without waiting for litigation to arise.

The relevance of advisory jurisdiction has increased in recent times. In 2025, President Droupadi Murmu referred questions concerning the timelines within which Governors and the President must act on Bills under Articles 200 and 201 of the Constitution. This Presidential Reference reignited debates about the scope of judicial power, the extent of executive discretion, and the balance of federalism.

This article provides a comprehensive explanation of advisory jurisdiction for law students, practising lawyers, and Advocate-on-Record (AOR) aspirants, focusing on its history, procedure, scope, case law, and practical significance.

Historical Evolution of Advisory Jurisdiction

The idea of advisory jurisdiction did not originate with the Indian Constitution. It traces its roots to the Government of India Act, 1935, specifically Section 213, which empowered the Governor-General to refer questions of law to the Federal Court.

However, when this provision was debated in the Constituent Assembly, it was consciously expanded. The Drafting Committee replaced the words “decision” with “opinion”, emphasising that the Court’s role would be advisory and not adjudicatory. Further, unlike Section 213 which only allowed reference of legal questions, Article 143 permits the President to refer both questions of law and fact, provided they are of public importance.

Thus, what began as a narrow colonial-era provision transformed into a broader constitutional tool, enabling the Supreme Court to guide the Executive on constitutional questions before conflicts became intractable.

Text of Article 143

Article 143 of the Constitution is divided into two clauses, each conferring different degrees of obligation:

1. Article 143(1) – If it appears to the President that a question of law or fact has arisen, or is likely to arise, and that it is of public importance, he may refer it to the Supreme Court. The Court, after such hearing as it thinks fit, may report its opinion. Here the Court has discretion; it may decline to give an opinion.
2. Article 143(2) – The President may also refer disputes of the kind mentioned in the proviso to Article 131. In such cases, the Supreme Court shall report its opinion. This clause appears mandatory, but the Court has held that even here, if the question is incapable of judicial determination, it may decline.

This careful drafting reflects a balance: while the President can approach the Court, the Court retains control over whether and how to answer, ensuring its advisory role does not slip into the domain of political decision-making.

Regular Jurisdiction vs Advisory Jurisdiction

The distinction between the Court’s ordinary jurisdiction and its advisory jurisdiction is crucial:

• In regular jurisdiction, cases are filed by parties in dispute. The Court hears arguments, examines evidence, and delivers a binding judgement enforceable under Article 141.
• In advisory jurisdiction, there are no contesting parties. Instead, the President seeks an opinion on abstract questions of law or fact. The outcome is an opinion submitted to the President, which is not legally enforceable.

For instance, if Parliament enacts a law and its constitutionality is challenged by affected parties, the Court decides the matter through litigation and its judgement binds all courts. But if doubts about the law’s constitutionality are raised before enactment, the President may seek the Court’s opinion. In such a scenario, the opinion is highly persuasive but not binding.

Scope of Presidential Reference

The President can refer questions that:

• Relate to the constitutionality of laws or Bills.
• Concern the interpretation of constitutional provisions, such as powers of constitutional authorities.
• Deal with implementation of international treaties or agreements.
• Touch upon federal disputes, for example, water-sharing between states.
• Even involve questions of fact of public importance, though this is rare.

For example, in the Berubari Union Reference (1960), the Court opined that a constitutional amendment under Article 368 was necessary to cede Indian territory to Pakistan. Similarly, in the Cauvery Water Disputes Reference (1993), the Court gave guidance on inter-State river water distribution.

Can the Court Go Beyond the Reference?

The Supreme Court has consistently held that it cannot travel beyond the terms of the reference made by the President.

In the Kerala Education Bill Reference (1957), the President had specifically asked about the constitutional validity of certain provisions of the Bill. The Court clarified that it could not examine other provisions not referred. Thus, the Court respects the boundaries of the Presidential mandate and confines its opinion to the precise questions posed.

Future Questions and Hypotheticals

Article 143 is not limited to issues that have already arisen. The Court may also consider questions that may arise in the future.

In the Gujarat Assembly Election Reference (2002/2003), the Court clarified that hypothetical but foreseeable issues could be referred. This allows the Executive to seek clarity in advance, preventing potential constitutional crises.

Discretionary vs Mandatory Nature

• Under Article 143(1), the Court has discretion. The wording “may” indicates that the Court can refuse if the question is political, vague, or unsuitable for judicial opinion. For example, in the Special Courts Bill Reference (1978), the Court refused to undertake what was essentially a legislative function.
• Under Article 143(2), the Court appears bound (“shall”), but in practice, it has held that even then it may return the reference unanswered if the question is incapable of judicial resolution.

This balance ensures that the Court’s advisory jurisdiction does not undermine the principle of separation of powers.

Binding Nature of Advisory Opinions

On the President

The Court’s opinion under Article 143 is not binding on the President. The marginal note itself uses the word “consult”, emphasising that it is advisory. Since opinions are neither decrees nor orders, they cannot be enforced under Article 142. However, in practice, the President normally honours the opinion due to its authority.

On Subordinate Courts

Advisory opinions are not precedents under Article 141. Yet they carry strong persuasive value. In Cauvery Water Disputes (1993), the Court itself noted that such opinions are normally followed. Thus, while not binding, they influence judicial and executive practice significantly.

Procedure under Supreme Court Rules

The procedure for advisory jurisdiction is governed by Order XLII of the Supreme Court Rules, 2013:

1. Notification – The Registrar receives the Presidential Reference and notifies the Attorney-General for India.
2. Identifying parties – The Court decides which parties should be heard and issues notices accordingly.
3. Submissions – Parties submit facts and arguments.
4. Hearing – The Court conducts hearings similar to original jurisdiction matters, with modifications.
5. Report – After deliberation, the Court’s opinion is transmitted to the President.

This structured process ensures transparency and fairness even in non-adversarial advisory proceedings.

Landmark References under Article 143

1. Delhi Laws Act Reference (1951) – Examined the extent of delegated legislation by Parliament.
2. Kerala Education Bill Reference (1957) – Clarified limits of advisory jurisdiction and the scope of President’s questions.
3. Berubari Union Reference (1960) – Held that ceding territory required a constitutional amendment.
4. Presidential Poll Reference (1974) – Addressed interpretation of constitutional provisions on Presidential elections.
5. Special Courts Bill Reference (1978) – Refused to give opinion when reference resembled legislative drafting.
6. Cauvery Water Disputes Reference (1993) – Explained the federal scheme on inter-State water disputes.
7. Ram Janma Bhumi–Babri Masjid Reference (1993) – President asked whether a Hindu temple existed before Babri Masjid; Court declined, holding it inappropriate.
8. Gujarat Assembly Election Reference (2002/2003) – Confirmed power to answer questions that may arise in the future.
9. Natural Resources Allocation Reference (2012) – Arising from the 2G case; clarified limits of Presidential Reference to avoid overturning Court’s judgements.
10. Punjab Termination of Agreements Act Reference (2017) – Examined state legislation on water agreements and centre–state federalism.

Each reference illustrates the strategic use of Article 143 in times of constitutional doubt.

Recently, President Droupadi Murmu referred questions arising from the Supreme Court’s judgement in State of Tamil Nadu v. Governor of Tamil Nadu (2025). The Court had imposed timelines for Governors and the President in acting upon Bills under Articles 200 and 201, ruling out the concept of a pocket veto.

The President questioned whether the judiciary could prescribe such timelines in the absence of express constitutional provisions. Among the 14 questions posed were:

• Is the Governor bound by the aid and advice of the Council of Ministers under Article 200?
• Can the exercise of discretion by the Governor or President under Articles 200 and 201 be subject to judicial review?
• Can timelines be judicially imposed where the Constitution is silent?
• Do the powers under Article 142 allow the Court to override constitutional provisions?

This reference highlights how Article 143 continues to be relevant in clarifying grey areas of constitutional law and ensuring a workable balance between the branches of government.

Conclusion

The advisory jurisdiction of the Supreme Court is a distinctive feature of the Indian Constitution. It empowers the Executive to seek clarity on vital constitutional issues, while giving the Judiciary a platform to articulate constitutional principles outside contentious litigation.

Although the Court’s opinions are not binding, they carry immense moral and constitutional authority, guiding both the President and future judicial interpretation. Over the years, the Court has exercised this power cautiously, ensuring it does not slip into political questions while still providing vital clarity on issues like federal disputes, constitutional amendments, and legislative competence.