According to the provision of which Article of the Constitution can the President of India ask for advice from the Supreme Court ?

Question

UnlockIAS · Accepted Answer

Correct — option (4), Article 143. The article is headed 'Power of President to consult Supreme Court' and it creates what is known as the advisory jurisdiction of the Court, a jurisdiction quite separate from the original jurisdiction in disputes between governments and from the appellate jurisdiction over judgments of the High Courts. Its first clause provides that if at any time it appears to the President that a question of law or of fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Court for consideration, and the Court may, after such hearing as it thinks fit, report its opinion to the President. Its second clause covers disputes arising out of treaties, agreements and similar instruments entered into before the commencement of the Constitution, which are otherwise excluded from the Court's original jurisdiction. Three features of this jurisdiction are what the Commission actually tests. The first is who may invoke it: the reference is made by the President, which in practice means on the advice of the Council of Ministers, and no private party and no other authority can ask the Court for an advisory opinion. The second is that the Court's answer is an opinion and not a judgment: it is not binding on the President, who is free to act on it or not, and it does not have the force of a decision delivered in a contested case, although in practice such opinions carry great weight and are followed. The third is that under the first clause the Court has a discretion. The word used is that the Court 'may' report its opinion, and it has on occasion declined to answer a reference, holding the question referred to be unsuitable for an advisory opinion; under the second clause, dealing with the pre-Constitution instruments, the language is mandatory and the Court is to report. A reference under this article must be heard by a bench of at least five judges, because Article 145 lays down that minimum both for cases involving a substantial question of law as to the interpretation of the Constitution and for the hearing of any reference under Article 143. The device has been used sparingly across the life of the Constitution, on questions such as the status of the Preamble in connection with the transfer of territory, on the validity of proposed legislation, and on questions arising out of disputes between States, and each such reference is known by the subject to which it relates. Option (4) is the answer.

Why the other options are wrong — (a) Article 142 is about the enforcement of the Supreme Court's own decrees and orders, and it contains the celebrated provision that the Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, such a decree being enforceable throughout the territory of India. That power belongs to the Court and is exercised by it on its own motion in cases before it; it is not a channel through which the President can seek anything from the Court, and the direction of the relationship is the reverse of what the stem describes. The article also empowers the Court, subject to law made by Parliament, to secure the attendance of persons, the discovery of documents and the punishment of contempt of itself. It is worth learning alongside Article 143 precisely because the two are adjacent and are both about extraordinary powers, but the one concerns what the Court may do to give effect to justice in a pending matter and the other concerns what the President may ask the Court to advise upon.  (b) Article 145 deals with the rules of court. It empowers the Supreme Court, with the approval of the President, to make rules regulating the practice and procedure of the Court, covering such matters as the persons who may practise before it, the procedure for appeals, and the conditions on which it may review its own decisions. Its connection with the answer is real but indirect and is worth knowing for that reason: the article lays down that the minimum number of judges who are to sit for deciding a case involving a substantial question of law as to the interpretation of the Constitution, or for hearing a reference under Article 143, shall be five. So Article 145 tells us how a reference is to be heard, while Article 143 is the article that permits the reference to be made in the first place. A candidate who half-remembers the connection between the two may mark this option; the way to separate them is to ask which article confers the power and which regulates its exercise.  (c) Article 147 is an interpretation clause and confers no power on anyone. It provides that in the chapter on the Union judiciary, and in the chapter on relations between the Union and the States, references to a substantial question of law as to the interpretation of the Constitution are to be read as including references to a substantial question of law as to the interpretation of the Government of India Act, 1935, and of the instruments amending or supplementing it, including the Indian Independence Act. It is a technical provision carrying forward the constitutional questions of the pre-Constitution era into the new framework, and it has no bearing on advisory opinions. Options of this kind are placed in a set to test whether a candidate is guessing among nearby numbers, and the way through is to place the run of articles by subject: the composition and jurisdiction of the Supreme Court in the one-hundred-and-twenties to one-hundred-and-forties, the advisory jurisdiction at 143, and the procedural and interpretive provisions after it.

Concept: The Supreme Court of India exercises several distinct jurisdictions and the Commission tests the ability to tell them apart. Its original jurisdiction under Article 131 covers disputes between the Government of India and one or more States, or between States, and is exclusive to it. Its writ jurisdiction under Article 32 allows a person to move it directly for the enforcement of a fundamental right, which Ambedkar called the heart and soul of the Constitution. Its appellate jurisdiction runs against judgments of the High Courts in constitutional, civil and criminal matters under Articles 132 to 134, and Article 136 adds a discretionary power to grant special leave to appeal from almost any court or tribunal. Article 137 gives it the power to review its own judgments. Article 143 supplies the advisory jurisdiction, under which the President may refer a question of law or fact of public importance for the Court's opinion; the opinion is advisory only and does not bind, and the Court may decline to answer a reference under the first clause of the article. Article 141 provides that the law declared by the Supreme Court is binding on all courts within India, and Article 142 empowers the Court to make any order necessary for doing complete justice in a matter before it. Read together, these articles describe a court that hears disputes, protects rights, corrects lower courts, advises the executive when asked, and declares law that binds the whole judicial system.

State PCS 2022 Q60 — Polity & Governance PYQ with Answer

State PCS 2022 Q60 — Polity & Governance PYQ with Answer