Article 143

Background and evolution

The idea of an advisory opinion comes from the Government of India Act 1935, which allowed the Governor-General to refer questions to the Federal Court. The Constitution retained this in Article 143. The United States Supreme Court, by contrast, refuses to give advisory opinions because it decides only actual "cases or controversies", while Canada allows reference questions; India follows the Canadian-style approach.

The first reference, In re Delhi Laws Act (1951), dealt with the limits of delegated legislation. Since then, about fifteen references have been made on subjects ranging from the Kerala Education Bill to the Berubari exchange of territory, legislative privileges, judicial appointments and the allocation of natural resources.

Key features and provisions

• Clause (1): the President may refer a question of law or fact that has arisen or is likely to arise and is of such public importance that the Court's opinion is expedient; the Court may decline to answer.
• Clause (2): the President may refer disputes arising from pre-Constitution treaties and agreements, which are excluded from the Court's original jurisdiction under Article 131; here the Court must give its opinion.
• Bench: at least five judges, under Article 145(3).
• Procedure: the Court hears the Attorney General and other parties and gives its opinion in open court.
• Effect: the opinion is not binding on the President, but in practice it carries great authority and is generally followed; the Court has treated its reasoning as law laid down for later cases.