Can Supreme Court's Judgment Be Altered In Presidential Reference? Article 143 & Advisory Jurisdiction Explained

Article 143(1) of the Constitution is in the spotlight after the President of India took an extraordinary step to invoke this provision to refer to the Supreme Court as many as 14 questions in relation to the powers of the Governors and President to act on Bills.

Since the issues under Reference were settled by the Supreme Court's judgment in State of Tamil Nadu vs Governor of Tamil Nadu, which did not sit well with the Union Government, the Presidential Reference has raised some eyebrows and kicked up a political controversy as well.

What is Article 143?

Article 143 confers advisory jurisdiction on the Supreme Court, which can be invoked by the President to seek the Court's opinion on questions of law and facts of public importance.

Supreme Court not bound to answer the Reference

The Supreme Court is not bound to give an opinion on the Presidential Reference. The Court may “refuse to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions forwarded to it and having regard to the other relevant facts and circumstances,” as held in Special Reference No. 1 of 1964.

“The Court is entitled to decline to answer a question posed to it under Article 143 if it considers that it is not proper or possible to do so, but it must indicate its reasons,” as held In Re the Special Courts Bill, 1978. Although such observations were made in these References, they were answered to an extent.

The only instance so far of the Supreme Court returning a Reference unanswered is the Reference made in relation to the Ayodhya-Babri Masjid dispute (Special Reference 1 of 1993).

Is the opinion given under Article 143 binding?

In The Ahmedabad St. Xavier's College Society and Another vs State of Gujarat and Another 1974 (1) SCC 717, the Supreme Court observed that the opinion given by the Court under Article 143 is not binding, though it carries a lot of weight and persuasive value. It was held in this judgment that the opinion expressed In Re Kerala Education Bill was not a binding precedent as it was given in exercise of advisory jurisdiction. Only the decisions given in “contested cases” are binding, the Court held.

“The opinion expressed by this Court in Re Kerala Education Bill was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect," the Court held in St.Xavier's.

Constitutional law expert HM Seervai also opined that the opinion given by the Supreme Court under Article 143 was only advisory in nature and was not binding law within the meaning of Article 141.

However, a contrary view was expressed in the Presidential Reference In Re: The Special Courts Bill, 1978. Justice YV Chandrachud expressed in this Reference that an opinion given under Article 143 ought to be binding on all Courts.

“It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all even if as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference,” Justice Chandrachud expressed. At the same time, the judgment held this question “may have to be considered more fully on a future occasion.”

Article 143 not an appellate power over judicial decisions

The jurisdiction under Article 143 is not an appellate power over judicial decisions. In the Reference related to Cauvery river dispute(Special Reference 1 of 1998), the Supreme Court observed that the Reference power cannot be used to sit in appeal over the decision of the Inter-States Water Disputes Tribunal.

The Court observed therein :

“We cannot, therefore, countenance a situation whereby question 3, and for that matter questions 1 and 2, may be so construed as to invite our opinion on the said decision of this Court. That would obviously be tantamount to our sitting in appeal on the said decision, which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said decision through a Reference under Article 143 of the Constitution.”

Article 143 can't be used as an appellate power over Supreme Court's decision between same parties

In the Cauvery Reference, the Court further stated that Article 143 cannot be used as an appeal against its own decisions inter-se parties. The Supreme Court's judgments between parties can be altered only in the exercise of its own review powers. An appellate power cannot be read into Article 143.

"A decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order 40 of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. Under the Constitution, such appellate jurisdiction does not vest in this Court, nor can it be vested in it by the President under Article 143. To accept Shri Nariman's contention would mean that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143, it would be a serious inroad into the independence of the judiciary."

Article 143 can't be used to refer a question which was already decided by the Supreme Court

In the Cauvery Reference, the Supreme Court further held that the President cannot seek reference on a question which has already been decided by the Supreme Court. When a question has been settled by the Supreme Court, it cannot be said that  any doubt longer exists on the point.

"When this Court, in its adjudicatory jurisdiction, pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or that the same is res integra so as to require the President to know what the true position of law on the question is. The decision of this Court on a question of law is binding on all courts and authorities. Hence, under the said clause, the President can refer a question of law only when this Court has not decided it."

In the 2G Reference of 2012 as well, the Supreme Court observed that a Reference can be returned unanswered if there is already an authoritative pronouncement on the issue. It was observed there : 

"..this Court would respectfully decline to answer a reference if it is improper, inadvisable and undesirable; or the questions formulated have purely socio-economic or political reasons, which have no relation whatsoever with any of the provisions of the Constitution or otherwise are of no constitutional significance; or are incapable of being answered; or would not subserve any purpose; or there is authoritative pronouncement of this Court which has already decided the question referred."

Previous judgments can be explained, clarified or modified while exercising Article 143 : From 2G Spectrum reference

The 2012 Presidential Reference in the 2G spectrum case arose in the aftermath of the judgment in Centre for Public Interest Litigation v. Union of India (2012), in which the Court cancelled 122 telecom licenses issued in 2008, holding that the first-come-first-serve policy adopted by the government was arbitrary and unconstitutional. However, policy concerns were raised regarding the Supreme Court's mandate that auction was the right method for allocating natural resources. To clarify this issue, the President of India, acting under Article 143(1) of the Constitution, referred a set of questions to the Supreme Court.

Objections were raised to the maintainability of the Reference on the ground that it was seeking to re-agitate the issues covered in the original judgment.

The Bench dealing with the Reference (Special Reference No. 1/2012) noted that there were instances where the Court has either “explained, clarified, or read down the ratio of previous judgments while exercising Article 143 jurisdiction.”

It noted that in Keshav Singh(Special Reference No. 1 of 1964), a seven-Judge Bench, while considering a reference under Article 143(1), examined a prior decision involving the interpretation of certain constitutional provisions. The Keshav Singh Reference proceeded to hold that the view expressed in Pandit M.S.M. Sharma Vs. Shri Sri Krishna Sinha case, regarding a proposition laid down in Gunupati Keshavram Reddy Vs. Nafisul Hasan case, was inaccurate.

Likewise, in the Second Judges Case (Special Reference No. 1 of 1998), the Supreme Court explained and clarified the dictum in the Supreme Court Advocates-on-Record Association and Others vs. Union of India regarding the transfer of judges.

Referring to such instances, the Supreme Court observed in the 2G Presidential Reference case :

“It is demonstrable that while entertaining the reference under Article 143(1), this Court had analysed the principles enunciated in the earlier judgment and also made certain modifications. The said modifications may be stated as one of the modes or methods of inclusion by way of modification without changing the ratio decidendi. For the purpose of validity of a reference, suffice it to say, dwelling upon an earlier judgment is permissible.”

In the 2012 Presidential Reference, the Supreme Court rejected the objections to the maintainability of the Reference, by saying that so long as it was only clarifying or explaining the ratio of the 2G case without interfering with the cancellation of the individual spectrum licenses, it will be acting within jurisdiction.

“As long as the decision with respect to the allocation of spectrum licenses is untouched, this Court is within its jurisdiction to evaluate and clarify the ratio of the judgment in the 2G Case. For the purpose of this stage of argumentation, it needs little emphasis that we have the jurisdiction to clarify the ratio of the judgment in the 2G Case, irrespective of whether we actually choose to do so or not. Therefore, the fact that this Reference may require us to say something different from what has been enunciated in the 2G Case as a proposition of law cannot strike at the root of the maintainability of the Reference. Consequently, we reject the preliminary objection and hold that this Reference is maintainable, notwithstanding its effect on the ratio of the 2G Case, as long as the decision in that case qua lis inter partes is left unaffected.”

The Supreme Court answered the Reference by holding that “Auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances”

The latest Presidential Reference in relation to the decisions on Bills raises certain unique issues. A key question is whether the President could raise the very same issues, which were answered in the TN Governor's case, going by the dictum in the Cauvery Reference case. Also, since the TN Governor case judgment issued certain binding directions to the President, the present Reference could be perceived as an attempt to seek review of the said judgment in disguise. At the same time, there is the precedent of the 2G Reference, where the Supreme Court clarified one dictum of the original judgment, after the Government stated that they were not questioning the cancellation of the spectrum licenses.

The Supreme Court's response to this Reference will be an interesting legal and constitutional development to watch out for.