Advisory jurisdiction refers to the power of certain authorities to seek the advice or opinion of the Supreme Court on specific legal or constitutional matters. This advisory role is not centered around resolving disputes between parties, as in the case of original or appellate jurisdiction, but rather involves the court providing guidance on legal issues brought before it in an advisory capacity.
Key Aspects of Advisory Jurisdiction in India:
1. Constitutional Provisions:
- Article 143: The advisory jurisdiction of the Supreme Court is explicitly outlined in Article 143 of the Constitution of India. This article empowers the President of India to seek the Supreme Court’s opinion on questions of law or fact that are of public importance or arise from a matter that has occurred or is likely to occur.
2. Conditions for Reference:
- Need for a Substantial Question: The President can seek advisory opinions on substantial questions of law or fact. The term “substantial” indicates that the question should be of significant public importance.
- Discretionary Power: While the President has the authority to seek advice, it is a discretionary power, and the President is not bound to act upon the opinion given by the Supreme Court.
3. Scope of Advisory Jurisdiction:
- Matters of Public Importance: The advisory jurisdiction is typically invoked in matters that have a broad impact on the public or involve issues of national significance.
- Legal and Constitutional Issues: The reference can pertain to questions of legal interpretation, constitutional validity of a proposed legislation, or any other legal issue that requires the expertise of the Supreme Court.
4. Procedure for Reference:
- Reference by the President: The President may refer a matter to the Supreme Court for its opinion. However, it is essential to note that the President can choose whether or not to accept the court’s advice.
- Reference by the Governor: In certain cases, the Governor of a state may also refer a matter to the Supreme Court for its opinion.
5. Opinion of the Supreme Court:
- Not Binding: The opinion given by the Supreme Court in response to an advisory reference is not binding on the President or the authority making the reference. It serves as advice and guidance.
- Justiciable Elements: While advisory opinions are not binding, they may contain justiciable elements, and the Supreme Court may provide reasons and legal interpretations in its response.
6. Historical Examples:
- Kesavananda Bharati Case (1973): In one of the landmark cases in India, the Kesavananda Bharati case, the Supreme Court provided an advisory opinion on the validity of the 24th Amendment to the Constitution, which sought to restrict the power of judicial review. The court’s opinion played a significant role in shaping the doctrine of basic structure.
- Reference on the Ayodhya Dispute (1994): The Supreme Court provided an advisory opinion on the constitutional issues arising out of the Ayodhya dispute.
7. Significance and Critique:
- Role in Constitutional Interpretation: Advisory jurisdiction contributes to the Supreme Court’s role in interpreting and clarifying constitutional provisions.
- Critique: However, this jurisdiction has also been criticized on the grounds that it could lead to potential interference with the separation of powers and could be misused for political purposes.
8. International Perspectives:
- Comparisons with Other Jurisdictions: The concept of advisory jurisdiction exists in various legal systems worldwide, and the procedures and conditions for its exercise may vary.
Advisory jurisdiction, as outlined in Article 143 of the Indian Constitution, provides a mechanism for seeking the Supreme Court’s guidance on crucial legal and constitutional issues that impact the nation. The discretionary nature of this jurisdiction allows for flexibility in its application, and the court’s opinions contribute to the development of legal principles and constitutional interpretation in India.
