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Consider the following statements regarding the advisory jurisdiction of the Supreme Court:
1. The reference for advice may be made to the Supreme Court on a question of law or fact by the President of India
2. Disputes arising out of pre-constitution treaties and agreements excluded from the original jurisdiction of the Supreme Court may also be referred to it.
3. The advice given by the Supreme Court is binding on the government
4. The Supreme court observation in the case of Kerala Education Bill, 1957 had immense impact on the advisory role of supreme court.
Which of these are correct?
1, 2 and 4
2 and 3
1and 2
3 and 4
According to Article 143 of the Constitution of India, the President of India may refer to the Supreme Court of India, a question of law or fact which, he thinks, is of public importance. However, it is not binding on the Supreme Court to answer questions raised in the reference. Also, the advice given by the Supreme Court is non-binding on the government.(Hence, statement third is incorrect.)
Advisory Jurisdiction (Only consultative Role): • President can refer to court either on a question of law or on a question of fact provided it is of public importance. However, it is not compulsory for court to give its advice. • Further, President is empowered to refer to SC for its opinion regarding disputes, arising out of provisions of a treaty, agreement etc. which was executed before 26th Jan 1950 & is in operation ever since. In such case, it is obligatory for the court to give its opinion to President. (In this cases, opinion expresses by SC is only advisory in nature & not binding on President) (Hence 3rd statement is correct)
WHETHER THE ADVICE IS A DECISION AND HENCE BINDING ON THE LOWER COURTS?
This question was first examined in the case of In re Kerala Education Bill, 1957 11 , where the court observed that, such an opinion is not technically binding on the courts, and the court giving the opinion may itself, in contested legislation be asked to reconsider it. Therefore, although any opinion expressed by the judges of the Supreme Court in an advisory opinion would have high persuasive authority, it is not the law declared by the Supreme Court within the meaning of Article 141. (Hence 4th statement is correct)
Further reading: THE ADVISORY JURISDICTION OF THE SUPREME COURT OF INDIA: A STUDY http://ijlljs.in/wp-content/uploads/2018/10/Advisory-Jurisdiction.pdf
By: Rakesh Kumar Barik ProfileResourcesReport error
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