About
- Article 143 gives the President the power to refer any question of law or fact of public significance to the SC for its opinion, based at the Union Council of Ministers’ advice.
- Article 145(3) requires such references to be heard via a bench of as a minimum five judges.
Historical Context
- Advisory jurisdiction under Article 143 is derived from the Government of India Act, 1935, which allowed the Governor-General to refer legal inquiries to the federal court.
- The Canadian Constitution allows its SC to provide legal critiques, even as the USA SC refrains from giving advisory reviews to uphold a strict separation of powers.
Past Instances of Such References
- There were about 15 Presidential references to the Supreme Court under Article 143. Some landmark cases including:
- Delhi Laws Act case (1951): Defined the scope of delegated regulation.
- Kerala Education Bill (1958): Harmonized Fundamental Rights with Directive Principles.
- Berubari case (1960): Held that territorial cession calls for a constitutional amendment.
- Keshav Singh case (1965): Explained legislative privileges.
- Presidential poll case (1974): Allowed elections despite vacancies in State Assemblies.
- Third Judges case (1998): Established the Collegium system for judicial appointments.
Key Issues in Current Reference
- It increases troubles about whether courts can impose timelines on President and Governors no longer explicitly stated in the Constitution (in particular beneath Articles 2 hundred and 201).
- It additionally questions the volume of the SC’s power under Article 142 (complete justice provision).
- Overturning Power via Advisory Reference: According to the 1991 Cauvery Water Disputes Tribunal opinion, Article 143 can not be used to review or oppose settled judicial decisions.
- However, the government may also nonetheless search for overview or curative petitions to project the State of Tamil Nadu vs The Governor of Tamil Nadu Case, 2023 verdict.
Significance of the Presidential Reference System
- Constitutional Interpretation of Roles: It can clarify the constitutional roles of the President and Governors, and whether non-time-bound executive actions can be subject to judicial oversight.
- Reaffirmation of Democratic Structure: It gives a threat to redefine the balance of power of the various legislature, govt, and judiciary, making sure constitutional order through stopping overreach.
- Procedural Certainty: It resolves procedural uncertainties in intergovernmental topics and may assist establish recommendations for resolving institutional friction in future.
- Smooth Federal Functioning: In a federal structure, this reference allows defining jurisdictional limitations between the Centre and States, promoting cooperative federalism via a clean prison framework for dispute resolution.
Challenges inside the Presidential Reference System
- Non-Binding Nature: The Supreme Court’s Article 143 advice is not legally binding on the President, restricting its realistic effect and elevating doubts about its effectiveness.
- Potential Politicization: The reference risks political misuse, especially when the ruling government seeks to validate arguable decisions or question destructive rulings, doubtlessly compromising judicial neutrality and regarding the judiciary in political disputes.
- Unclear Threshold for Referral: The Constitution lacks a clear widespread for what constitutes a “question of law or reality of public significance,” granting the government wide discretion that may bring about references lacking real constitutional importance.
- Institutional Tensions: Referrals often stand up from judiciary-executive disputes, doubtlessly heightening tensions and undermining judicial independence, specifically while revisiting settled judgments.
No Timeline for Response: The Constitution has no time restriction for the Supreme Court to respond to a reference, risking delays in urgent subjects that avert governance and policy clarity.
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