Supreme Court's presidential reference opinion not binding, say legal experts

New Delhi Should the Supreme Court's decision on Presidential reference be treated as an advisory opinion and not as a “law declared” under Article 141 of the Constitution?

Senior advocate Vijay Hansaria said the SC's opinion on the Presidential reference does not bind the executive or the courts in the same way as a judgment delivered in an adversarial litigation but it has high persuasive authority and high authoritative value.

"The advisory opinion does not displace existing precedent unless subsequently overruled in a regular adversarial judgment," he said.

The senior counsel cited several key cases, including In re Berubari Union (1960), wherein it was held that Article 143 opinion is advisory and not enforceable as a decree.

He also cited Special Reference No. 1 of 1964 (Keshav Singh case), in which this court clarified that although advisory, the opinion is of the highest persuasive authority.

Likewise, in Special Reference No. 1 of 1993 (Babri Masjid case), this court reiterated that Article 143 opinions do not bind courts under Article 141 like regular judgments.

He pointed out the seven judge bench of Supreme Court in Keshav Singh (1964) has said that “..technically, the advisory opinion rendered by this court on the reference made to it by the President may not amount to judicial adjudication properly so-called and since there are no parties as such before the Court in the reference, nobody would be bound by our answers.” 

The same view was reiterated by a seven judge bench in In Re: Special Courts Bill (1978) that while answering Presidential reference under Article 143, the Supreme Court may “overrule, if necessary” an earlier, but such overruling is only persuasive and not binding under Article 141. 

Again in the case of Natural Resources Allocation (2012), the Supreme Court has confirmed that opinion under Article 143 of the Constitution is advisory and is not binding having the status of “law declared”, he underscored.