Consider the following statements:
[A] Article 143 deals with the Advisory Jurisdiction of the Supreme Court.
[B] To seek advice, under this article, is literally President's 'Right', not 'Power'.
[C] Supreme Court can deny to tender such advice. Which of the statement/s given above is/are correct?

Question

Consider the following statements: 
[A] Article 143 deals with the Advisory Jurisdiction of the Supreme Court. 
[B] To seek advice, under this article, is literally President's 'Right', not 'Power'. 
[C] Supreme Court can deny to tender such advice. Which of the statement/s given above is/are correct?

Accepted Answer

The correct option is (2):
The correct option is (A) and (C) only, which means statements $$A$$ and $$C$$ are correct. Let us examine the advisory jurisdiction of the Supreme Court, which is enshrined in Article 143 of the Indian Constitution. Statement $$A$$ correctly states that Article 143 deals with the Advisory Jurisdiction of the Supreme Court. This jurisdiction is unique to the Indian Supreme Court compared to the apex courts of many other countries, like the US Supreme Court. This provision enables the President to seek the opinion of the Supreme Court on two categories of matters: first, any question of law or fact of public importance that has arisen or is likely to arise (Article 143(1)); and second, a dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, Sanad or other similar instrument (Article 143(2)). This function acts as a constitutional mechanism to assist the President (and by extension, the Executive) in navigating complex legal and factual issues that may impact public policy or constitutional coherence.

Statement [C] is also correct, as the Supreme Court can deny to tender such advice, but only under specific circumstances laid out in Article 143. Specifically, under Article 143(1), concerning matters of public importance, the language used is "the Court may... report to the President its opinion thereon." The use of the word "may" grants the Supreme Court the discretion to refuse to offer its opinion if it deems the reference improper, political, or non-justiciable. This was upheld in the case of the Kerala Education Bill, 1957, where the Court recognized this discretion. However, it is crucial to note that under Article 143(2), concerning pre-Constitution agreements, the constitutional language is "the Supreme Court shall... report to the President its opinion thereon," meaning in that specific scenario, the court is obliged to give its opinion. Since the statement refers to the Supreme Court's general ability to deny advice under the Article, and the primary mechanism (143(1)) allows for discretion, the statement is held to be correct.

The incorrect option is (1): (A) only
This option is incorrect because while statement $$A$$ is correct, statement $$C$$ is also correct. The Supreme Court does possess the discretionary power to refuse to give its opinion, particularly under the widely used clause (1) of Article 143, where it deals with questions of law or fact of public importance. Therefore, selecting only (A) ignores the constitutional reality that the judiciary maintains judicial independence and is not merely an obligated arm of the executive when providing advisory opinions on general matters. For a reference to be entertained, it must meet criteria like involving a substantial question of law or fact and being of public importance, and even then, the court is not legally bound to give its view under Article 143(1).

The incorrect option is (3): (B) and (C) only
This option is incorrect because statement $$A$$ is correct and must be included, and statement $$B$$ is definitively incorrect. The act of consulting the Supreme Court under Article 143 is consistently referred to as the President's 'Power' to consult the Supreme Court, not a 'Right.' In constitutional law terminology, 'power' is a capacity bestowed by the Constitution on an office-holder to perform a function, whereas a 'right' often implies an enforceable claim against another party. Article 143 grants the executive head the functional capacity to initiate the consultation process, reinforcing that it is a governmental 'Power.' Furthermore, rejecting statement $$A$$ is fundamentally wrong, as it correctly identifies the Article.

The incorrect option is (4): (B) only
This option is incorrect because statement $$B$$ is wrong, as explained above (it is the President's 'Power', not 'Right'). Furthermore, this option omits statement $$A$$ which correctly identifies the Advisory Jurisdiction under Article 143 and statement $$C$$ which correctly notes the court's general discretion to deny advice under the primary clause of the Article. The entire advisory mechanism is rooted in Article 143, making statement $$A$$ a primary correct premise, and the nature of the court's response grants it discretion, confirming statement $$C$$. Consequently, focusing solely on the incorrect statement $$B$$ is flawed.