Political Philosophy
Report Its Opinion Thereon: The Advisory Jurisdiction the Supreme Court May Decline, and the One It May Not
10 October 2026 · 16 min read
The advisory jurisdiction is usually introduced as a convenience. The Government of the day has a constitutional doubt; rather than wait for litigation to produce the question, it asks the Supreme Court directly, and the Court tells it where the law stands. On that description the jurisdiction is a shortcut — the same answer the Court would have given eventually, obtained earlier and without a dispute.
The article that creates it does not read that way. Article 143 has two clauses, and the difference between them is a single auxiliary verb. Under the first, the Court may report; under the second, it shall. The jurisdiction is therefore not one power but two, and the one the Court is obliged to exercise is the one it would otherwise have no power to touch at all. Read with the proviso to Article 131, with Article 363, and with the provisions of Article 145 that govern how an opinion must be delivered, the article turns out to describe something narrower and stranger than a shortcut: a proceeding with all the apparatus of adjudication and none of its consequences, compulsory precisely where adjudication is forbidden.
Two clauses, two verbs
Article 143(1) is conditional throughout. "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."
Three discretions sit in that sentence. The President decides whether a question has arisen or is likely to arise, and whether it is of such public importance that an opinion is expedient. He may then refer it. And the Court, having received it, may report. Nothing in the clause tells the Court when it should and when it should not; nothing requires it to give reasons for declining; and the clause attaches no consequence to a refusal. The reference is made "for consideration", which is what the Court must give it, and the opinion is what the Court may withhold.
This is a departure worth marking. Everywhere else in Chapter IV of Part V the Supreme Court's jurisdiction is either conferred or made to depend on conditions outside the Court's will. Under Article 131 the Court "shall ... have original jurisdiction" in the disputes there listed. Under Article 132 an appeal "shall lie" on the certificate of a High Court. Under Article 136 the Court "may, in its discretion, grant special leave to appeal", which is a discretion over admission rather than over whether to sit at all. Article 143(1) is the only provision in the Chapter that hands the Court a matter properly before it and leaves it free to return the matter unanswered.
Clause (2) withdraws that freedom. "The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon."
The President's discretion to refer survives. The Court's discretion to decline does not. And the threshold disappears with it: clause (2) contains no requirement that the dispute be of public importance, or indeed of any importance. Any dispute of the specified kind may be sent, and when it is sent the Court must report. The only discretion the clause leaves the Court is over the hearing — "after such hearing as it thinks fit" — which is a discretion about procedure, not about whether to answer.
Where the opinion is compulsory, the judgment is barred
The obvious question is what class of dispute is important enough to compel an opinion from the Supreme Court, and the answer inverts the expectation. The disputes in clause (2) are the disputes the Constitution has taken away from the Court.
The proviso to Article 131, which clause (2) opens by displacing, reads: "Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute." The main part of Article 131 gives the Supreme Court original jurisdiction, to the exclusion of any other court, over disputes between the Union and the States and between States, so far as they involve a question on which the existence or extent of a legal right depends. The proviso carves out of that jurisdiction the disputes arising from the pre-Constitution instruments.
Article 363(1) completes the exclusion and does so in terms that point directly back at Article 143. It opens: "Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement". The bar extends further, to any dispute about a right, liability or obligation arising out of the Constitution's own provisions relating to such an instrument.
The two exclusions are not drawn in identical terms, and the difference is worth keeping in view. The proviso to Article 131 identifies the instrument by its date and its continuance — entered into or executed before the commencement of the Constitution and still in operation — or by its own stipulation that the jurisdiction shall not extend to such a dispute. Article 363(1) adds a party: the instrument must have been entered into or executed by a Ruler of an Indian State, with the Government of the Dominion of India or a predecessor Government on the other side. Article 143(2) is keyed to the first of these, since it refers to "a dispute of the kind mentioned in the said proviso", while Article 363(1) preserves the advisory route independently by making its own bar subject to Article 143.
The combined effect is nevertheless the same in the area where they meet. The proviso to Article 131 removes this class of dispute from the Supreme Court's original jurisdiction. Article 363(1) removes the Rulers' instruments from every court in the country, and expressly keeps Article 143 open over them. And Article 143(2) provides that on the class the proviso describes, and on no other, the Supreme Court has no choice but to give its opinion when asked.
So the Constitution does not merely decline to adjudicate these instruments. It replaces adjudication with advice, and it makes the substitute mandatory while the original is prohibited. The category on which the Court has no power to pronounce judgment is the category on which its opinion cannot be refused.
The pairing was deliberate and has been maintained. The footnotes to Article 143(2) record that the clause originally referred to "clause (i) of" the proviso to Article 131, and to the dispute mentioned in the "said clause"; the Constitution (Seventh Amendment) Act, 1956 omitted the first expression and substituted "said proviso" for the second. When Article 131's proviso ceased to be divided into clauses, the cross-reference in Article 143(2) was adjusted to keep pointing at the same thing. The tie between the compulsory opinion and the excluded dispute is not an accident of drafting left unattended.
The forms of a judgment
Having made the opinion something less than a decision, the Constitution then surrounds it with every formality of one.
Article 145(3) fixes the quorum. The minimum number of Judges who are to sit "for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five". A reference is placed on the same footing as a substantial question of constitutional interpretation. Whatever else an opinion is, it is not to be given by a smaller Bench than the Constitution requires for its own construction.
Article 145(4) governs delivery: "No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court." The report goes to the President, but it may not go to him privately. The opinion on which it rests must first be delivered publicly, in the same manner as a judgment, and the report must conform to it. The clause forecloses the possibility of advice tendered to the executive in confidence — the one feature that would make the jurisdiction genuinely advisory in the ordinary sense of counsel given to a client.
Article 145(5) supplies the rest: "No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion." An opinion requires a majority, and a Judge who does not concur may record a dissent. A dissent is an institution developed for decisions: its function is to register disagreement with an outcome and to preserve a view for later. The Constitution preserves it here, in a proceeding that produces no outcome.
What Article 141 does not say
The provision that would settle the status of an opinion is the one that does not mention it. Article 141 reads, in full: "The law declared by the Supreme Court shall be binding on all courts within the territory of India."
The article does not speak of judgments, and so it cannot be said on its face to exclude opinions. What binds is "the law declared" — a phrase about the act of declaration rather than the vehicle. An advisory opinion is delivered in open court, by at least five Judges, on a question of constitutional law, with a majority and a dissent; if that is not a declaration of law, the difference must lie somewhere other than in the manner of its making.
Article 145 nevertheless keeps the two apart with some care. Clauses (4) and (5) each name "judgment" and "opinion" separately, and clause (4) treats them as distinct objects requiring distinct provision. A drafter who regarded an opinion as a species of judgment would not have needed to mention both twice in two consecutive clauses. The text therefore supplies an argument in each direction and resolves neither: Article 141 is wide enough on its words to carry an opinion, and Article 145 is careful enough in its vocabulary to suggest the categories were not treated as one.
What the text does settle is narrower and often passed over. Whatever an opinion binds, it does not dispose of anything. A reference has no litigants whose rights are determined by the answer, no relief, no decree, and nothing for Article 142 to enforce. The question returns to the President, who referred it; the proceeding ends there.
The reference that binds, and the one that does not
The Constitution contains another reference to the Supreme Court, and the comparison shows that the choice in Article 143 was a choice.
Article 317(1) provides that the Chairman or any other member of a Public Service Commission "shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed."
Every element Article 143 withholds is present here. The reference is made by the President, as under Article 143, but the Court's report is a precondition of the executive's power: removal on the ground of misbehaviour may follow only after a report that the member ought to be removed. A report the other way leaves the President without the power. Article 317(2) confirms the report's operative character by providing for suspension of the member pending it, "until the President has passed orders on receipt of the report of the Supreme Court on such reference". The Constitution here makes the Court's conclusion a condition of validity.
Article 145 marks the two as different kinds of business. Clause (1)(j) empowers the Supreme Court to make rules "as to the procedure for inquiries referred to in clause (1) of article 317" — a separate head from the references under Article 143 for which clause (3) fixes the Bench. One is an inquiry producing a report the executive must obey; the other is a reference producing an opinion the executive receives.
Who it is that "appears"
Article 143(1) turns on what "appears to the President". That phrase has a settled meaning supplied elsewhere in the same Part. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head "to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice", and its proviso permits him to require reconsideration and then obliges him to act in accordance with the advice tendered after it. Article 74(2) adds that "the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court".
The judgment that a question has arisen, that it is of sufficient public importance, and that an opinion is expedient is therefore in substance the judgment of the Union executive; and the clause that would allow anyone to examine how that judgment was formed is closed by Article 74(2). The selection of the question — its framing, its timing, and what is left out of it — belongs to a Ministry whose deliberations on the point cannot be inquired into.
Against that, the discretion in clause (1) does real work. If the Court must take whatever question the executive chooses to frame, at whatever moment the executive finds convenient, then the word "may" is the only protection the article contains against a jurisdiction used for something other than resolving doubt. It is also, on the face of the clause, unreviewable in the other direction: nothing obliges the Court to explain a refusal. The provision confers a discretion on each side and subjects neither to the other.
One referring authority, and no State equivalent
The jurisdiction has no counterpart in the States, and the omission is complete rather than oblique. There is no provision by which a Governor may refer a question to a High Court, and none by which a High Court may report an opinion to a Governor. Part VI, which equips the States with an executive, a legislature and a High Court in deliberate parallel to Part V, simply does not reproduce Article 143. The parallel is otherwise close enough to make the omission legible. Article 203 reproduces Article 113 almost word for word, putting the Governor where the President stands and the Legislative Assembly where the House of the People stands. And where the Constitution does want a provision about the Supreme Court to govern a High Court, it says so and says how: Article 218 provides that clauses (4) and (5) of Article 124 "shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court". The technique for extending such a provision existed and was used. It was not used for Article 143.
The asymmetry is consistent with everything else in the article. A single referring authority, acting on the advice of a single Council of Ministers, may put a question to a single court. Constitutional doubt entertained by a State government about its own powers has no equivalent route; it must wait for a dispute, and if the dispute is with the Union it must come under Article 131, where the Court decides rather than advises.
What the design assumes
Taken together the provisions describe a proceeding built to produce an authoritative statement and withheld from producing a result.
There is a coherent reason for that. An opinion given without parties is given without the discipline that parties supply. Nobody has a right at stake, nobody is bound, and the facts are whatever the question asserts them to be — and Article 143(1) expressly contemplates a question "of law or fact", which the Court is to answer after such hearing as it thinks fit, with no machinery for evidence specified. A system that let such a proceeding dispose of anything would be letting the executive obtain, by framing a question well, what it could not obtain by litigating. Confining the output to an opinion keeps the Court's decisive power attached to real disputes, and the formalities of Article 145 ensure that what is produced in the meantime is at least produced in public, by a Bench of constitutional size, with dissent preserved.
The difficulty is the one the arrangement creates at its edges. Article 143(2) is mandatory over a field in which no court may give judgment, so for that field advice is not a supplement to adjudication but its replacement — and a replacement that reaches no party and settles no right. Clause (1), by contrast, is discretionary over the whole of constitutional law, and the discretion is the Court's alone, exercisable without reasons. The result is that the Constitution's one channel between the executive's doubts and the judiciary's answers is compulsory where it can decide nothing and optional where it could decide a great deal.
What Article 143 distributes, then, is not the power to settle questions. It is the power to ask, which it gives to the Union executive and places beyond inquiry, and the power to answer, which it gives to the Court and in clause (1) leaves entirely to it. The advisory jurisdiction is not a faster route to a ruling. It is the one proceeding in which the Supreme Court speaks with every formality of judgment about a matter it has not been asked to decide.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.