Front Page   

Constitution Bench to hear reference on Gujarat

By J. Venkatesan

NEW DELHI Aug. 21. The Supreme Court will hear on August 26 the reference made by the President, A.P.J. Abdul Kalam, raising three important questions of law on the interpretation of Article 174 (that there should not be a gap of more than six months between two Assembly sessions) and the Election Commission's powers under Article 324.

A five-judge Constitution Bench, headed by the Chief Justice, B.N. Kirpal, will hear the Solicitor-General, Harish Salve, who had already been issued notice in this regard as the Attorney-General, Soli Sorabjee, is out of station.

The reference arose after the Election Commission in its August 16 order deferred holding of Assembly polls in Gujarat till November-December and recommended imposition of President's rule after October 3 (the last sitting of the Gujarat Assembly was on April 3) in view of the fact that Article 174 could not be complied with.

So far, Presidents have sought the advisory opinion of the Supreme Court on more than 10 occasions. The nature of the references had been the constitutionality of an existing law or a Bill presented to the President for assent; implementation of an international agreement; respective jurisdiction of the Legislature and superior courts in relation to the power of the former to punish for contempt; further interpretation of constitutional provisions relating to election of the President; powers of an inter-State water disputes tribunal in the Cauvery dispute; in the Ayodhya dispute, whether a Hindu temple or a religious structure existed at a particular place; and consultation between Chief Justice of India and his brother judges in the matter of appointments of Supreme Court and High Court judges.

The President could seek a reference on a question of law or fact only when the Supreme Court had not decided it. Also the advisory jurisdiction under Article 143 is not an appellate jurisdiction of the apex court.

While under Article 143 (2), it is obligatory on the apex court to entertain a reference and to report to the President its opinion thereon, the court under Article 143 (1) has a discretion in the matter and may, in a proper case, decline to express any opinion on the questions submitted to it.

Also the advisory opinion is not a judgment and does not, accordingly, furnish a good root of title such as might spring from a judgment of the Supreme Court. Nevertheless, so far as all courts are concerned, they would be bound by such opinion.

The Supreme Court itself would, however, remain free to re-examine and if necessary to overrule the view taken in an opinion under Article 143 (1) but it would not entertain argument on points covered by the opinion on the reference.

Printer friendly page  
Send this article to Friends by E-Mail

Front Page

News: Front Page | National | Southern States | Other States | International | Opinion | Business | Sport | Miscellaneous |
Advts: Classifieds | Employment | Obituary |

Stories in this Section

• Signs of forward movement in India-Pak. ties
• Alternative list in hand but door is not closed: Dalmiya
• Constitution Bench to hear reference on Gujarat
• Advise Modi on 'gaurav yatra', Sonia tells PM
• 'I will return to Pak.'
• Publishing opinions on Ayodhya a contempt: HC
• Laxman, Tirkey, Sita get Arjuna Awards
• Musharraf to be President and Army chief till 2007
• Not quitting: Thackeray
• Sharmas to be questioned

Copyright © 2002, The Hindu. Republication or redissemination of the contents of this screen are expressly prohibited without the written consent of The Hindu