Advisory Jurisdiction

Four things, and the last is where the marks are.

1. "appears to the President", that is, the President on the aid and advice of the Council of Ministers under article 74. In substance the Union Government decides what to refer.
2. "a question of law or fact", not confined to law, and "of such public importance that it is expedient", which is the President's own satisfaction and not a justiciable standard.
3. "has arisen, or is likely to arise", so the question may be hypothetical. Kerala Education is the proof: the Bill had not received assent, so the questions were "necessarily of an abstract or hypothetical nature".
4. "the Court may ... report". Not "shall", and not "decide". Both words matter, and both are taken up below.

Article 143(2) provides that the President may, notwithstanding the proviso to article 131, refer a dispute of the kind mentioned in that proviso, "and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon". That proviso excludes from the Court's original jurisdiction disputes arising out of certain pre-Constitution treaties and agreements, and for those the word is shall.

Article 145(3) fixes at five "The minimum number of Judges who are to sit ... for the purpose of hearing any reference under article 143", and 145(4) adds that "no report shall be made under article 143 save in accordance with an opinion also delivered in open Court".

Must the Court answer?

The answer is in two halves.

Under clause (2), yes. Kerala Education: "while under clause (2) it is obligatory on this Court to entertain a reference and to report to the President its opinion thereon, this Court has, under clause (1), a discretion in the matter and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it."

Under clause (1), no, but the discretion is exercised sparingly. Kerala Education adopts Gwyer C.J.'s statement under the 1935 Act that "The terms of that section do not impose an obligation on the Court, though we should always be unwilling to decline to accept a Reference, except for good reason." It rejected two objections to entertaining the reference before it: that the questions concerned a Bill and not an enacted law, since clause (1) contemplates a question "likely to arise"; and that the reference was incomplete, because "it is for the President to determine what questions should be referred" and the Court "cannot go beyond the reference".

A judge may decline even when the Court answers. Kerala Education quotes Zafrulla Khan J., who in an earlier reference declined to frame answers at all, calling it "a jurisdiction the exercise of which on all occasion must be a matter of delicacy and caution".

What an opinion is worth

Three propositions, each from a document read here.

It is a report and not a judgment. The word in article 143 is "report", and article 145(4) speaks of a report made "in accordance with an opinion". The Reference of 20 November 2025 puts it beyond doubt: the Court's role under article 143 "does not constitute 'judicial adjudication'".

Its formal force is not that of a decision between parties. Kerala Education quotes Spens C.J.: it does not assist to say the opinions expressed "will have no more effect than the opinions of the law officers", because "That is the necessary result of the jurisdiction being advisory."

Its practical force is very great. It is the considered opinion of at least five judges, delivered in open court after full argument, and any later court asked the same question knows what those judges thought. The 2025 Reference is the working example: it displaced the most striking parts of a judgment delivered earlier the same year, as [The Governor] sets out.

The first Reference

Facts. In re The Delhi Laws Act, 1912, [1951] 2 SCR 747, decided on 23 May 1951. The President referred three questions: whether section 7 of the Delhi Laws Act, 1912, section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950 were ultra vires, and to what extent. Each empowered a government, by notification, to extend to a territory "with such restrictions and modifications as it thinks fit" any enactment in force elsewhere. The report notes that the three were chosen to raise delegated legislative power at "the three main stages in the constitutional development of India".

Held. The Court answered, and the opinions differ. Kania C.J. held all three sections ultra vires "to the extent power is given to the Government (executive) to extend Acts other than Acts of the Central Legislature". Another opinion held all three "in their entirety constitutional and valid". A third answered subject to the qualification that the power to "restrict and modify" "does not import the power to make essential changes", because "To alter the essential character of an Act or to change it in material particulars is to legislate, and that ... cannot be delegated by a legislature which is not unfettered."

Why it matters. Kerala Education records it as the first reference under article 143(1). It is also a warning about the form of the answer: separate opinions on an abstract question can leave the referring government with a range of views rather than one, the practical objection to the jurisdiction. Its substance belongs to [Delegated Legislation].

A Reference answered

Facts. In re The Kerala Education Bill, 1957, (1959) 1 SCR 995, decided on 22 May 1958. The Kerala Legislative Assembly passed the Bill on 2 September 1957, the Governor reserved it for the President under article 200, and the President referred four questions on whether specified clauses offended articles 14, 30(1) and other provisions. Counsel for some institutions asked the Court not to entertain the reference at all, saying the questions were abstract and an opinion might destroy the institutions they represented.

Held. The Court entertained the reference and answered all four questions, holding among other things that clauses 8(3) and 9 to 13 did not offend article 30(1), while clause 3(5), so far as it subjected aided minority institutions to clauses 14 and 15, did. On the jurisdiction, the passages set out above: discretion under clause (1), obligation under clause (2), no bar because the measure is still a Bill, and the content of the reference is for the President. The report also records the Privy Council's caution that such opinions would be "worthless as being speculative opinions on hypothetical questions".

Why it matters. It is the standard authority on the nature and scope of article 143(1), and shows the jurisdiction working as intended: a Bill was tested before it became law, and the State was told which clauses would not survive. Its substance is in [Article 30: To Establish and to Administer] and [Who Is a Minority?].

The most recent Reference

Facts. In re Assent, Withholding or Reservation of Bills by the Governor and the President, advisory opinion under article 143, pronounced on 20 November 2025 by five judges, Gavai C.J. with Surya Kant, Vikram Nath, Narasimha and Chandurkar JJ. The document read is the Court's own record of the pronouncement, not a law report; it carries no report reference and none is invented. After a judgment of April 2025 on the Governor's assent, the President referred fourteen questions about articles 200 and 201 and about whether a court may fix time limits.

Held. The record extracts the Court's own summary of conclusions at paragraph 165, of which two matter here. The President "is not required to seek advice of this Court by way of reference under Article 143, every time a Governor reserves a Bill for the President's assent. The subjective satisfaction of the President is sufficient. If there is a lack of clarity, or the President so requires advice of this Court on a Bill, it may be referred under Article 143, as it has been done on numerous previous occasions." And, on the nature of the jurisdiction: decisions under articles 200 and 201 "are not justiciable at a stage anterior into the law coming into force ... Pertinently, discharge of its role under Article 143, does not constitute 'judicial adjudication'." Two of the fourteen questions were returned unanswered as "irrelevant to the functional nature of this reference".

Why it matters. Three things at once. It is the most recent Reference. It shows the clause (1) discretion exercised in the least dramatic way available, by returning questions unanswered rather than declining the reference. And it shows an opinion doing the work of a judgment, since it displaced the timelines and the deemed assent laid down in April 2025.

A worked example

A State Bill taxes a service the Union also taxes. The Governor reserves it under article 200 and the Union Government is unsure whether it is within the State's competence.

Step one, is a reference open? Yes. A question of law "is likely to arise" and is of public importance, so article 143(1) is available on the President's satisfaction.

Step two, does it matter that the Bill is not law? No. Clause (1) covers a question likely to arise, and Kerala Education answered on an unassented Bill.

Step three, how many judges? At least five under article 145(3), the opinion delivered in open court under article 145(4).

Step four, must the Court answer? Under clause (1), no. It may decline for good reason, though it is "unwilling to decline", and it may answer some questions and return others, as in 2025.

Step five, what is the President given? A report of the Court's opinion. It does not strike the Bill down and does not bind the State, no lis having been decided. In practice the Bill is redrafted, and a later challenge is argued against an opinion of five judges.

Step six, and if the dispute concerned a pre-Constitution agreement excluded by the proviso to article 131? The reference is then under clause (2), and the Court shall report.

What it does NOT mean

It does not mean the Court is bound to answer. The commonest error. Clause (1) says "may report", clause (2) says "shall", and Kerala Education states the difference expressly.

It does not mean an opinion decides a case. Nothing is adjudicated, nobody wins and no relief issues. The 2025 record says the role under article 143 "does not constitute 'judicial adjudication'".

It does not mean the Court can enlarge the reference. Kerala Education holds that what is referred is for the President and the Court "cannot go beyond the reference".

Quick revision

• Article 143(1): question of law or fact, arisen or likely to arise, of public importance; "the Court may ... report to the President its opinion thereon".
• Article 143(2): a dispute within the proviso to article 131; the Court shall report. The only compulsory branch.
• Article 145(3): five judges minimum for a reference. Article 145(4): the opinion is delivered in open court.
• Kerala Education (1958): discretion under clause (1), obligation under clause (2); a Bill may be referred; the reference's content is for the President; a judge may still decline to answer.
• The wording of clause (1) comes from section 213(1) of the Government of India Act, 1935. The United States and Australia have no such jurisdiction.
• Delhi Laws Act (1951): the first reference under clause (1); separate opinions and differing answers, the practical objection to advisory opinions.
• 20 November 2025: the most recent Reference; two questions returned unanswered; the role under article 143 "does not constitute 'judicial adjudication'"; no report reference exists for it.

Test yourself

1. Set out article 143(1) and its requirements. Which word settles whether the Court must answer?

2. Explain the difference between clauses (1) and (2) of article 143, using the words of Kerala Education.

3. Two objections were taken to entertaining the reference in Kerala Education. State them and the answers.

4. What is the difference between a judgment and a report under article 143, and what follows for the weight of an opinion? Illustrate from the Reference of 20 November 2025.