Article 143

Article 143 of the Constitution of India confers upon the President of India the authority to seek the advisory opinion of the Supreme Court on questions of law or fact that are of public importance or relate to disputes between the Centre and the States. This provision establishes a formal channel for constitutional consultation between the executive and the judiciary, enabling the President to obtain judicial clarity on complex or sensitive legal and constitutional issues.

Constitutional Text

Article 143 reads:

(1) 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 consideration, and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the Constitution, refer to the Supreme Court for opinion any dispute of the kind mentioned in the proviso to clause (1) of Article 131, and the Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

The provision thus distinguishes between advisory references under clause (1) and inter-governmental disputes under clause (2).

Purpose and Constitutional Significance

The primary purpose of Article 143 is to provide the executive branch a constitutional mechanism for seeking the judiciary’s opinion on legal or constitutional questions that carry national importance. It serves to:

• Prevent potential constitutional crises by clarifying doubtful points of law.
• Maintain constitutional harmony between the Union and State governments.
• Assist the executive in making informed decisions on complex legal issues.
• Strengthen the collaborative functioning of the three branches of government while preserving their independence.

This Article reflects the framers’ intention to ensure that the Supreme Court acts not only as a judicial authority but also as an adviser in matters of constitutional governance.

Clause (1): Advisory Opinion on Questions of Law or Fact

Under Clause (1), the President may refer to the Supreme Court any question of law or fact that:

• Is of public importance, or
• Is likely to arise in the future and requires judicial clarification.

In such cases:

• The Supreme Court has discretion to accept or decline the reference.
• If accepted, the Court conducts hearings and furnishes its advisory opinion to the President.
• The opinion is not binding on the executive but carries high persuasive and moral authority, given its source in the apex judicial body.

This advisory function makes Article 143 an important constitutional safety valve, ensuring that vital issues of national significance can be clarified without formal litigation.

Clause (2): Reference of Inter-Governmental Disputes

Clause (2) of Article 143 specifically empowers the President to refer to the Supreme Court any dispute between the Centre and one or more States, or between two or more States, of the kind described in the proviso to Article 131(1) — that is, disputes involving legal rights or obligations.
Unlike Clause (1), where the Supreme Court’s role is discretionary, under Clause (2) the Court is obliged to hear and report its opinion once a valid reference is made. This ensures that politically sensitive inter-governmental conflicts are resolved through a neutral judicial process rather than political negotiation.

Scope and Nature of Advisory Jurisdiction

Article 143 provides the Supreme Court with a unique consultative jurisdiction, distinct from its judicial or appellate functions. The advisory opinion given under Article 143 does not have the force of law in the same manner as a binding judgment under Article 141. However, in practice, such opinions command great legal weight and are treated as authoritative interpretations.
This jurisdiction may cover:

• Constitutional questions, such as the validity or interpretation of constitutional provisions.
• Factual issues with broad political or social implications.
• International treaties, agreements, or disputes involving India’s sovereign obligations.

Procedure for Reference

The process under Article 143 generally involves the following steps:

1. The President refers the question of law or fact to the Supreme Court through a formal reference.
2. The Court decides whether to entertain the reference (mandatory under Clause 2, discretionary under Clause 1).
3. If accepted, the Court conducts hearings, often inviting the Attorney-General of India and other parties or experts to assist in the matter.
4. The Supreme Court deliberates and reports its advisory opinion to the President in writing.

The opinion is then considered by the Union Government while formulating policy or resolving the referred issue.

Landmark Judicial Opinions under Article 143

Over the years, the Supreme Court has delivered several significant advisory opinions under Article 143:

• In re: The Special Reference No. 1 of 1964 (Keshav Singh Case):The Court clarified the extent of parliamentary privileges and the judiciary’s power of judicial review, laying down the principles governing the separation of powers.
• Re: Kerala Education Bill (1958):The first-ever advisory opinion under Article 143, where the Court examined the constitutionality of provisions in the Kerala Education Bill and advised the President on their compatibility with fundamental rights.
• Re: Special Courts Bill (1978):The Court opined on the validity of the Special Courts Bill for trying offences by persons holding high public office, declaring that the Bill was constitutionally permissible.
• Re: Berubari Union and Exchange of Enclaves (1960):The Court advised that ceding Indian territory to another country requires a constitutional amendment under Article 368, not merely executive action.
• Re: Cauvery Water Disputes Tribunal (1991):The Court clarified its powers concerning inter-state river disputes and the enforcement of tribunal awards.
• Re: Presidential Reference on Ayodhya (1993):The Court declined to answer questions concerning the disputed site, holding that such issues involved political and factual questions unsuited to judicial determination.

These opinions demonstrate the Court’s role in resolving issues of constitutional, political, and international significance through its advisory function.

Importance of Article 143

Article 143 serves several vital constitutional functions:

• Advisory Role: Provides a formal mechanism for the executive to obtain legal guidance from the judiciary on complex or unsettled questions of law.
• Prevention of Constitutional Deadlocks: Helps resolve potential disputes between the Centre and States or among States before they escalate into litigation.
• Judicial-Executive Cooperation: Encourages harmonious functioning of the organs of government while respecting the separation of powers.
• Strengthening Constitutional Governance: Ensures that significant national questions are resolved with judicial insight, reinforcing the supremacy of constitutional principles.

Limitations and Criticisms

Despite its importance, Article 143 is subject to certain limitations:

• Non-binding Nature of Opinions: The President is not constitutionally bound to follow the Supreme Court’s advisory opinion, though it is highly persuasive.
• Judicial Discretion: Under Clause (1), the Supreme Court may decline to entertain the reference if it deems the issue unsuitable for judicial consideration.
• Potential for Politicisation: There is concern that the executive might use Article 143 to legitimise political decisions or to shift responsibility for contentious issues onto the judiciary.
• Absence of Enforceability: Since advisory opinions do not carry the same binding effect as judicial decrees, their implementation depends on the executive’s will.

Related Constitutional Provisions

• Article 131: Grants the Supreme Court original jurisdiction in disputes between the Centre and States.
• Article 141: Makes the law declared by the Supreme Court binding on all courts in India.
• Article 32 and Article 136: Define the Supreme Court’s jurisdiction in fundamental rights and appellate matters.

Together, these provisions outline the comprehensive authority of the Supreme Court as both a judicial and advisory body within India’s constitutional framework.

Constitutional Significance

Article 143 reflects the framers’ vision of a consultative and cooperative constitutional system. By enabling the President to seek the Supreme Court’s advice, it bridges the gap between the executive and judiciary, ensuring that constitutional governance operates with clarity, legality, and mutual respect.