The role of the judiciary as adviser to the executive or legislative department of the Government was unknown to India until the inauguration of the Government of India Act of 1935. The enunciation of this principle as embodied in Section 213 of the Act evinces an attempt to follow the old English practice of the executive consulting the judiciary.
With the establishment of the Federal Court of India in 1937 and the number of important advisory opinions rendered by the Court since then, judicial circles in India were by and large convinced of the usefulness of conferring a jurisdiction of this nature on the highest Court of the land. There was, therefore, hardly any criticism in the Constituent Assembly on Article 143 of the Constitution which provides for the advisory role of the Supreme Court.
Article 143(1) enacts: “If at any time it appears to the President that a question of law or 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 that Court for consultation, and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.”
The President can, thus, refer to the Court either a question of law or a question of fact provided that it is of public importance. There is, however, no constitutional compulsion for the Court to give its advice. Further, it is up to the Court to decide as to what type of hearing it will adopt for the purpose.
In this respect, the Court has adopted the same procedure as in the case of a regular dispute that comes before it. The hearing is in the open Court; interested parties are heard in the usual manner, and the opinion of the Court is announced in the open Court. Judges are allowed to divide themselves and give their opinions jointly or severally, concurring or dissenting.
Under Section (2) of Article 143, the President is empowered to refer to the Supreme Court for its opinion disputes arising out of any treaty, agreement etc. which had been entered into or executed before the commencement of the Constitution.
In such cases, it is obligatory for the Court, under the Constitution, to give its opinion to the President. The treaties, agreements, etc., referred to here, are those which the Government of India have entered into with the former Princely States and their Rulers between 1947 and 1950 during which period the territorial integration of the Indian Union was accomplished.
There has been only limited number of occasions during the last six decades when the President referred questions to the Supreme Court for its opinion. The first of these was in 1951, and dealt with the scope of delegation of legislative power in India.
The Court was asked to determine the validity or otherwise of certain provisions of three enactments, the Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950. The Court was unable to give a unanimous opinion in answer to the specific questions referred to it. Yet the different opinions expressed by the judges who heard the case are hailed as “momentous” on the subject of delegation of legislative power.
The second reference, by the peculiar nature of its subject matter, is almost unprecedented in the annals of advisory jurisdiction. It dealt with a Bill passed by the Legislature of the State of Kerala, in 1957, which sought to reorganise the educational system, at the primary and secondary stages in that State.
As the Bill contained certain provisions which authorised the State Government to take over schools managed by private agencies and, as such, came within the scope of the property right provisions of the Constitution, Presidential assent became necessary for its validity.
Since there were serious and acrimonious controversies within the State about the validity of several provisions of the Bill in the light of some of the Fundamental Rights under the Constitution, and representations were made to the President not to give his assent to such an “unconstitutional piece of legislation,” the President decided to send the Bill for the opinion of the Court.
Here again, the opinion of the Court has become one of the most important ever given by the Court, interpreting the scope of the constitutional guarantees ensuring the cultural and educational rights of minorities.
The third reference relates to the question of ceding certain territories of the Indian Union to a foreign State, namely, Pakistan. The question arose out of an agreement between the Prime Ministers of India and Pakistan in 1958, by which certain territories were to be exchanged between the two countries.
Such an agreement involving transfer of Indian Territory was attacked as unconstitutional both in Parliament and outside. The matter was hence referred to the Supreme Court for its opinion and the Court declared that for a valid transfer of Indian Territory to a foreign State a constitutional amendment was absolutely necessary.
These three opinions 1 of the Court are enough to prove the beneficent results of its advisory jurisdiction. 1