The Special Advisory jurisdiction of the Supreme Court of India and the high courts

A look into the powers conferred into the Supreme Court of India and the various High Courts within the states in India.

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We are all aware that in the Pyramid of Courts of Justice in India, the Supreme Court is the Apex Court of the Country and is also considered the highest Court of appeal under Article 124 of our Constitution. As we are aware, the Supreme Court of India came into existence, when our constitution was formed viz: 26th January 1950 and is conferred with the Original, Appellate and Advisory Jurisdiction.  As regards the High Courts, we have about 25 High Courts all over the country and they also have original, appellate and advisory jurisdiction. Advisory jurisdiction is basically giving a non-binding opinion on a subject or a question of law referred to a Court

Understanding the advisory jurisdiction of the Supreme Court:-

Under Article 143 of the Constitution of India, 1950 the President of India may obtain the opinion of the Supreme Court of India on any question or fact of law which may be of public importance and may need any advice from the Supreme Court. This process is also known as a Presidential Reference. It should be understood that the advisory jurisdiction is different from the decision making power of the Court, which has been its task from time immemorial.  However, under Clause (1), the Supreme Court may assess the matter and decide whether it wants to give the opinion on the same or not. Therefore, the Supreme Court has the power to refuse giving an opinion as well. Likewise it is up to the president to accept or reject the advice of the Supreme Court but out of courtesy almost every time the Advice is accepted. The matter is generally referred to a 5 Bench judge, who in turn have to submit a detailed report.  The judgments passed under the advisory jurisdiction do not become law under as mandated under Article 141 of the Constitution of India, as Such references mainly comprise of socio-economic or political questions and have nothing to do with the Rule of Law.

We can examine a few cases to understand this advisory jurisdiction Ref: Keshav Singh v. Speaker of the Legislative Assembly, in this case there was a complete deadlock between the State legislature of the Uttar Pradesh and the Allahabad High Court. The Petitioner was arrested for the charge of contempt of the Uttar Pradesh State Assembly. Therefore, he petitioned the Allahabad High Court and was granted bail by the Division Bench of the said Court. This led to the assembly issuing summons against the judges and the advocates, who in turn filed a petition restraining the legislative assembly from issuing a warrant against the judges in specific. In this deadlock situation the President referred the matter to the Supreme Court, who advised that judges, who entertain a petition challenging any order of penalty imposed of the legislature on the petitioner for its contempt were not in contempt of the said legislature and hence the legal proceedings against them cannot be initiated.

Nevertheless, as we have seen from the analysis above, the said order of judgments are not binding on either party and are basically sought when clarity is needed on a particular issue. Hence, if the Court feels that the opinion sought for is against the basic tenants of the Constitution, it can chose to decline the same, for eg: the Babri Masjid case referred to the Supreme Court for advisory purpose was turned down as being against the basic doctrine of secularism mentioned in our Preamble of the Constitution Ref: Ismail Faruqui Vs Union Of India. Therefore, this jurisdiction is important in an Independent country, where this acts as a channel of co-operation between the various wings of the governing machinery. 

Role of the High Court

A similar power vests with High Courts who can advise in case the State government or if there is a reference from the Governor of the State. As it is in the case of the Apex Court where the advice is not binding, similarly, the advice given by the High Court is not binding on the authority that sought it.  The High court remains to be the apex court in the State judicial system which is followed by a system of subordinate courts. However, they come below the Supreme Court in India’s judicial hierarchy. Articles 214 – 231 of the Indian Constitution deal with the composition and the powers as well as the jurisdictions of the High Courts of India. These High Courts have a large variety of and a very varied jurisdiction.

Detriments of the Advisory jurisdiction

The various advisory estimations are condemned because they are notional, theoretical, abstract and very unpredictable, as there are no contesting parties. They are more of just academic considerations and sometimes involve even political controversies which can be dangerous, as we are a secular country. Therefore, this jurisdiction must be used very cautiously and when facts are totally clear, otherwise it is quite possible that this may create a political controversy. Therefore, this power is to be used very judiciously keeping in mind that very delicate and political issues are not referred. It is better to refer matters involving state questions or problems and should be done only at the ascendency of the State Government.

Tags: Apex court, Supreme Court, Powers conferred, Appellate jurisdiction, Original jurisdiction, Advisory jurisdiction

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