Advisory Jurisdiction of the Supreme Court of India explained under Article 143 of the Indian Constitution. According to this, even the President can seek Supreme Court opinion on any legal or public-policy issue. The Supreme Court's advisory jurisdiction in the Indian Constitution is derived from the Government of India Act, 1935. According to Articles 131, 133–136, and 143 of the Indian Constitution, the Supreme Court has three sorts of jurisdictions: Original, Appellate, and Advisory. This article explains the Advisory Jurisdiction which is important for UPSC IAS exam preparation. 

What is Advisory jurisdiction ?

• The Constitution of India Article 143 authorises the president to seek the opinion of the Supreme Court
• Under the Constitution, the President may seek the Supreme Court's opinion on two types of matters.
  • Any point of law or public fact that has arisen or is likely to arise
  • Any pre-constitutional contract, agreement, covenant, engagement, or other similar instrument that gives rise to a dispute.
• In the first instance, the Supreme Court may or may not submit its opinion to the President, but in the second situation, it is obligated to do so.
• The Supreme Court's decision is advisory rather than binding in both cases. As a result, it does not bind the President; he or she is free to follow or disregard the opinion.
• The Supreme Court is under no obligation to provide an opinion. Rather, the Supreme Court may decline to provide an opinion under Article 143 in instances that it does not think suitable or susceptible to such exercise. 
• So far (2019), the president has made fifteen references to the supreme court under its advisory jurisdiction. 
• It is also known as consultative jurisdiction.
• References to the Supreme Court under its advisory jurisdiction

1. Delhi Laws Act in 1951
2. Kerala Education Bill in 1958
3. Berubari Union in 1960
4. Sea Customs Act in 1963
5. Keshav Singh’s case relating to the privileges of the Legislature in 1964
6. Presidential Election in 1974
7. Special Courts Bill in 1978 
8. Jammu and Kashmir Resettlement
9. Cauvery Water Disputes Tribunal in 1992
10. Rama Janma Bhumi case in 1993
11. Consultation process to be adopted by the chief justice of India in 1998
12. Legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001
13. The constitutional validity of the Election Commission’s decision on deferring the Gujarat Assembly Elections in 2002
14. Punjab Termination of Agreements Act in 2004
15. 2G spectrum case verdict and the mandatory auctioning of natural resources across all sectors in 2012

Advisory Jurisdiction of High Court

• A comparable power is conferred in High Courts, which can render advice if a reference is made by the State government or the Governor of the State.
• The High Court's advice is not binding on the authority that requested it, just as the Apex Court's advice is not binding on the authority that requested it.
• The High Court remains the highest court in the State judicial system, which is backed by a network of smaller courts. However, in India's legal system, they are subordinate to the Supreme Court.

Conclusion

The Supreme Court is the country's highest judicial authority, with a wide range of jurisdiction and significant powers and responsibilities that it exercises in the public interest. It protects an individual's fundamental rights and interprets the Constitution's provisions using its broad perspective.

FAQs

Q1: What is the advisory jurisdiction of the Supreme Court?

Q2: Is the Supreme Court's advisory opinion binding?

Q3: What kind of matters can be referred to the Supreme Court for advisory opinion?

Q4: Can private individuals request an advisory opinion from the Supreme Court?

Q5: When was the advisory jurisdiction of the Supreme Court most notably used?

MCQs

1. Under which article of the Constitution does the Supreme Court exercise its advisory jurisdiction?

(a) Article 32

(b) Article 143

(c) Article 226

(d) Article 368

2. Is the advisory opinion of the Supreme Court binding on the government?

(a) Yes, it is binding.

(b) No, it is not binding.

(c) It is binding only in constitutional matters.

(d) It depends on the nature of the question.

3. Who can seek the advisory opinion of the Supreme Court?

(a) Prime Minister

(b) Parliament

(c) President

(d) Governor

4. Which of the following is an example of a case where the Supreme Court provided an advisory opinion?

(a) Kesavananda Bharati Case

(b) Berubari Union Case

(c) Golaknath Case

(d) S.R. Bommai Case

5. What is the primary objective of the Supreme Court's advisory jurisdiction?

(a) To assist the Prime Minister in legal matters

(b) To resolve disputes between states

(c) To guide the President on questions of law and fact

(d) To oversee constitutional amendments

GS Mains Questions and Model Answers

Q1: Explain the significance of the advisory jurisdiction of the Supreme Court in the Indian legal system.

Answer: The advisory jurisdiction of the Supreme Court, as provided under Article 143, plays a crucial role in offering legal clarity on complex questions of law and public importance. Although the opinion is not binding, it serves as valuable guidance for the government in decision-making. This jurisdiction fosters a collaborative relationship between the executive and judiciary, helping prevent potential legal conflicts. The non-binding nature preserves the independence of both the judiciary and the executive while promoting constitutional governance.

Q2: Critically analyze the limitations of the advisory jurisdiction of the Supreme Court.

Answer: While the advisory jurisdiction provides legal clarity, it has certain limitations. The opinion delivered is not binding, reducing its practical enforceability. Moreover, only the President can invoke this jurisdiction, limiting access to this mechanism. The judiciary must also exercise caution to avoid overstepping into executive or legislative domains. Another challenge is the potential misuse of this power by the executive to defer politically sensitive decisions. Thus, while it promotes executive-judicial cooperation, it requires careful use to maintain the balance of power.

Q3: Discuss the relevance of the advisory jurisdiction of the Supreme Court in resolving complex constitutional questions.

Answer: The advisory jurisdiction is particularly relevant in addressing constitutional dilemmas or issues involving public importance, such as questions of territorial disputes or international treaties. For instance, the Berubari Union case showcased its utility in resolving diplomatic complexities. By providing non-binding opinions, the judiciary assists the executive in formulating legally sound policies while respecting the separation of powers. However, the advisory function must be used judiciously to avoid any encroachment on executive decision-making.

Previous Year Questions on Advisory Jurisdiction of Supreme Court

1. UPSC CSE 2018

Question: Analyze the role of the Supreme Court’s advisory jurisdiction in maintaining the balance between the executive and judiciary in India

Answer: The advisory jurisdiction under Article 143 provides a platform for the judiciary to guide the executive on legal matters without issuing enforceable directives. This non-binding nature ensures that both branches retain their independence while cooperating on constitutional issues. It reflects a symbiotic relationship wherein the judiciary offers legal wisdom and the executive retains discretion. However, the judiciary must refrain from excessive activism in its advisory role to maintain institutional balance. The Berubari Union case exemplifies how this mechanism helps avoid conflicts while ensuring constitutional compliance.

2. UPSC CSE 2021

Question: Evaluate the significance of non-binding advisory opinions in the Indian constitutional framework.

Answer: Non-binding advisory opinions ensure that the judiciary offers guidance without undermining the executive’s authority. This mechanism strengthens constitutional governance by providing clarity on legal ambiguities, such as the Berubari Union case. The non-enforceable nature of these opinions promotes flexibility, allowing the government to make final decisions in the public interest. However, it also means that advisory opinions may be disregarded, reducing their practical impact. Despite this limitation, the advisory jurisdiction enhances the judiciary’s role as a guardian of the Constitution by preemptively addressing potential conflicts.