Supreme Court jurisdiction II: advisory opinions, review, curative petitions and complete justice

Detail

1. Advisory jurisdiction (Article 143)

Advisory jurisdiction means the President asks the Supreme Court for its legal opinion. The Court gives that opinion without deciding a dispute between two parties.

• Roots: Article 143(1) comes from Section 213 of the Government of India Act, 1935. That section let the Governor-General ask the Federal Court for its opinion on important legal questions [6].
• Article 143(1): the President may refer a question of law or fact that is of public importance.
• The Court "may" answer. It can decline.
• The Court may refuse when a question is political, hypothetical or vague, or when it cannot be answered [4].

• The Court may refuse to answer all or some of the questions. A reference cannot be used as a hidden review or appeal against a decided case [5].

• Article 143(2): the President may refer disputes about pre-Constitution treaties, agreements and similar documents. The proviso to Article 131 keeps these disputes out of the Court's original jurisdiction.

• Here the Court "shall" answer.

• While the Constitution was being drafted, this clause was changed so that the Court gives only an "opinion" on such disputes, not a binding decision [6].

• Binding force: the opinion does not bind the President or the government. The President is also free not to make a reference at all.

• Bench: every Article 143 reference goes to a Constitution bench of at least 5 judges (Article 145(3)).

NCERT's view of its use

• Utility: the government gets legal advice before it acts. This avoids later lawsuits and lets it correct a law or step in time.
• NCERT's student bubble finds it odd that both sides are free to say no. The President need not ask, the Court need not answer, and the government need not follow the advice.
• NCERT exercise: a proposed law to give citizenship to residents of Pakistan-occupied areas is an example of a matter the President could refer for advice.

2. Notable Presidential references

Year	Reference	What it settled
1951	Delhi Laws Act	Parliament can delegate (hand over) some law-making to the executive, but not its essential law-making functions
1958	Kerala Education Bill	Balanced minority institutions' rights (Article 30) with Directive Principles
1960	Berubari Union	Giving Indian territory to another country needs a constitutional amendment under Article 368. A simple law under Article 3 is not enough. This led to the 9th Amendment (1960)
1965	Keshav Singh	Clash between a state legislature's privileges and the courts' powers
1978	Special Courts Bill	The Court examined the validity of a Bill before it became law
1991	Cauvery Water Disputes Tribunal	Karnataka's ordinance overriding the tribunal's interim order was held invalid
1993	Ram Janmabhoomi	Returned unanswered in Ismail Faruqui (1994)
1998	Third Judges case	Collegium of the CJI plus the 4 senior-most judges for Supreme Court appointments
2002	Gujarat elections	Referred on 19 August 2002, about the Election Commission's orders on holding elections after the assembly was dissolved [4]
2012	Natural resources (after 2G)	Came after the 2G judgment cancelled 122 telecom licences. Asked whether the Court could interfere in policy choices on how to allocate resources [5]

• Other references listed by the government include the Sea Customs Act, 1878, the 1974 Presidential election and the Jammu & Kashmir Resettlement Bill [4].

3. The Governors' assent reference (2025)

• Background: in April 2025, a Supreme Court bench (State of Tamil Nadu v. Governor of Tamil Nadu) held that the Constitution does not let a Governor withhold assent indefinitely. It used Article 142 to treat 10 pending Tamil Nadu Bills as having received deemed assent [3].
• Reference: in May 2025, the President sent 14 questions on Articles 200 and 201 to the Court under Article 143(1). This was the 16th Presidential Reference [3][6].
• Article 200 covers the Governor's assent to state Bills.

• Article 201 covers Bills that the Governor reserves for the President.

• Opinion: given on 20 November 2025 by a five-judge bench (2025 INSC 1333) [2][3]. The Court said:

• Three options: under Article 200 the Governor may (i) give assent, (ii) reserve the Bill for the President, or (iii) withhold assent and send the Bill back to the legislature with comments. Option (iii) is not available for Money Bills [3].
• Advice: for Article 200 functions, the Governor is not bound by the advice of the Council of Ministers. These functions are normally not justiciable (courts cannot normally review them) [3].
• No timelines: the Constitution sets no time limit, so the Court should not invent one [3].
• No deemed assent: the Constitution has no idea of "deemed assent". No other authority, including the Court, can step into the Governor's role under Article 200 [3].

• Narrow exception: if a Governor shows prolonged inaction, the Court can give limited directions telling the Governor to act. It still cannot say what the decision should be [3].

• Effect: the opinion went against the April 2025 approach of court-set timelines and Article 142 deemed assent. Formally, an advisory opinion still does not bind anyone. (The Governor's side of this issue is covered in state-government-governor.)

4. Constitution benches (Article 145(3))

• Constitution bench: a bench of at least five judges.
• It is needed for (a) cases with a substantial question of law about interpreting the Constitution and (b) every Article 143 reference.
• Larger benches hear landmark cases: 7, 9 or 11 judges, and 13 judges in Kesavananda Bharati (1973), the largest bench so far.
• Why bench size matters: a smaller bench cannot overrule a larger one. To change a 13-judge ruling, a bigger bench would be needed.
• Backlog: many constitution-bench cases stay pending for years, because each one ties up five or more judges.
• Rule-making: under Article 145 the Court makes its own rules of practice and procedure, with the President's approval. The Supreme Court Rules, 2013 were made under this power.

5. Review petition (Article 137)

A review petition asks the same Court to look again at its own final judgment.

• Legal base: Article 137, read with Article 145 and Order XLVII of the Supreme Court Rules, 2013 [9].
• Grounds: only an error apparent on the face of the record, meaning a clear mistake that can be seen without a long argument. It is not a second appeal.
• Time limit: file within 30 days of the judgment.
• Hearing:
• Usually heard in chambers (in private, on the papers, with no oral arguments) by the same bench that gave the judgment.

• Exception: reviews in death-sentence cases are heard in open court with oral arguments (Mohd. Arif v. Registrar, Supreme Court, 2014). A death sentence cannot be undone once carried out.

• NCERT's student bubble asks why the Court should be able to change its own ruling, and whether the same judges sit again. Answer: judges can make mistakes, and review lets them fix one. The same bench usually hears the review because it knows the case best.

6. Curative petition (Rupa Ashok Hurra v. Ashok Hurra, 2002)

A curative petition is the last remedy, filed after a review petition has failed. It exists to cure a gross miscarriage of justice, meaning a serious injustice.

• Basis: the Court created it in Rupa Ashok Hurra (2002) using its inherent powers. It is now in Order XLVIII of the Supreme Court Rules, 2013 [9].
• Only two routes: a Supreme Court decision can be reopened only through review (Article 137) or a curative petition. There is no third way [9].
• Grounds: for example, a breach of natural justice (the party was not heard) or bias by a judge that was not disclosed.

• Procedure, in order: 1. File the petition only after the review petition has been dismissed. 2. A senior advocate must certify that it meets the grounds. 3. It goes to the three senior-most judges plus the judges of the original bench, if available. 4. It is listed for a hearing only if a majority of those judges agree it needs one. 5. Otherwise it is dismissed in chambers. Costs may be imposed on a petition that wastes the Court's time.

• Rarely allowed:

• Allowed in Delhi Metro Rail Corporation v. Delhi Airport Metro Express (April 2024). The Court set aside an arbitration award that it had earlier upheld.
• The government's Bhopal gas tragedy curative petition for more compensation from Union Carbide was dismissed in March 2023.

Review and curative petition compared

Feature	Review petition	Curative petition
Source	Article 137; SC Rules 2013, Order XLVII	Rupa Ashok Hurra (2002); SC Rules 2013, Order XLVIII
When	Within 30 days of the judgment	After the review is dismissed
Ground	Error apparent on the record	Gross miscarriage of justice (natural justice, bias)
Filter	None special	Senior advocate's certificate
Bench	Same bench, in chambers (open court for death sentences)	3 senior-most judges plus the original bench

7. Doctrine of precedent (Article 141)

• Article 141: law declared by the Supreme Court binds all courts in India.
• Ratio decidendi: the legal reasoning needed to reach the decision. This part binds.
• Obiter dicta: side remarks made in passing. These only persuade.
• The Court can change its mind:
• The Supreme Court is not bound by its own earlier decisions (Bengal Immunity Co. v. State of Bihar, 1955).
• A larger bench can overrule a smaller one.

• A decision given per incuriam loses its binding force. Per incuriam means "through lack of care": the bench missed a law or a binding precedent.

• NCERT exercise: the Ecuador case is set beside India so students can compare how each country's courts follow earlier rulings.

8. Complete justice power (Article 142)

• Text: in any case or matter before it, the Supreme Court may pass any decree or order "necessary for doing complete justice". That order is enforceable throughout the territory of India [7].
• History:
• It comes from Section 210 of the Government of India Act, 1935, which dealt with enforcing Federal Court orders.
• Draft Article 118 (1948) added the new "complete justice" phrase.
• The Constituent Assembly adopted it on 27 May 1949 without any debate [8].

• The original idea was probably narrow: procedural powers and contempt. Courts later read it much more widely [8].

• Nature: the Court calls these powers wide, inherent and supplementary. They add to the Court's powers under ordinary laws and are not limited by those laws [7].

• Major uses:
• Bhopal settlement (1989–91): a US$470 million settlement with Union Carbide that ended all civil and criminal cases.
• Ayodhya (M. Siddiq v. Mahant Suresh Das, 2019): ordered 5 acres of land for a mosque.
• Perarivalan (2022): ordered his release after more than 30 years in prison (Rajiv Gandhi assassination case) [8].
• Shilpa Sailesh v. Varun Sreenivasan (2023): the Court can grant divorce on irretrievable breakdown of marriage (a marriage that has failed beyond repair). It can also waive the six-month waiting period for divorce by mutual consent.
• Kuldeep Kumar v. UT Chandigarh (2024): the Court declared the defeated candidate the Chandigarh mayor after finding the presiding officer had tampered with ballots.

• Tamil Nadu Bills (April 2025): deemed assent to 10 Bills held back by the Governor [3].

• Limits:

• It cannot override express statutory provisions (Prem Chand Garg, 1962).
• It cannot take away a substantive right given by law (Supreme Court Bar Association v. Union of India, 1998). The Court held it could not suspend a lawyer's licence under Article 142 because the Advocates Act, 1961 gives that power to the Bar Council.

• The November 2025 advisory opinion held that deemed assent cannot replace the Governor's role [3].

• Critique: in April 2025 the Vice-President called Article 142 a "nuclear missile" available to the judiciary against democratic institutions. Critics fear "complete justice" lets judges act as lawmakers.

9. Article 144

• All civil and judicial authorities in India must act in aid of the Supreme Court.
• Effect: together with Article 142, this means Supreme Court orders reach every part of the government machinery.

Prelims Hooks

• Article 143(1) → Court "may" give its opinion; Article 143(2) (pre-Constitution treaty disputes) → Court "shall" give its opinion. Neither opinion binds the President.
• Origin of advisory jurisdiction → Section 213, GoI Act 1935. Origin of Article 142 → Section 210, GoI Act 1935 / Draft Article 118 [6][8].
• Ram Janmabhoomi reference (1993) → returned unanswered in Ismail Faruqui (1994).
• Berubari reference (1960) → ceding territory needs an Article 368 amendment → 9th Amendment, 1960.
• 16th Presidential Reference (May 2025, 14 questions; opinion of 20 November 2025, 5 judges) → no court-fixed timelines, no deemed assent, limited directions only for prolonged inaction [2][3].
• Article 145(3) → at least 5 judges for constitutional interpretation and Article 143 references. Largest bench so far: 13 judges (Kesavananda, 1973).
• Review → Article 137, 30 days, error apparent; death-sentence reviews in open court (Mohd. Arif, 2014).
• Curative petition → Rupa Ashok Hurra (2002); senior advocate's certificate; 3 senior-most judges plus the original bench; SC Rules 2013, Order XLVIII [9].
• Trap: the Supreme Court is not bound by its own decisions (Bengal Immunity, 1955). Article 141 binds only the courts below it.
• Article 142 limit → cannot override express statute (Prem Chand Garg, 1962; SCBA, 1998). Article 144 → all authorities act in aid of the Supreme Court.

Mains Points

• Advisory jurisdiction: a useful tool or a misused one?
• For: the government gets legal clarity before acting, as in Berubari and Kerala Education.
• Against: references can be a way around a ruling the government dislikes. The 2012 natural-resources and 2025 Governors' references came soon after inconvenient judgments, yet a reference cannot work as an appeal [5].

• Weak points: the opinion is non-binding and the Court can decline, as in Ayodhya (1994). Some suggest making opinions binding, or limiting references to questions not already decided.

• Finality versus correcting mistakes:

• Review and curative petitions protect against injustice.
• But too many reopened cases weaken the finality of judgments and add to pendency.

• DMRC (2024) shows the curative route can upset settled commercial awards, so strict filters are needed.

• Article 142 and the separation of powers:

• It has delivered justice where laws had gaps, for example irretrievable breakdown of marriage and the Chandigarh mayor's election.
• Critics, including the Vice-President's "nuclear missile" remark (April 2025), say it lets judges act as lawmakers.
• The Prem Chand Garg/SCBA limits and the 2025 rejection of deemed assent show the Court limiting itself.

• Suggested reform: Article 142 should fill gaps in the law, not override statutes, and the Court should give reasons for each use.

• Constitution-bench backlog: pending references and five-judge cases leave key questions unsettled for years. Reform ideas include a permanent Constitution bench or a separate Constitutional Court, as suggested in debates on Supreme Court reform.