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Advisory Jurisdiction of Supreme Court

In Re: The Kerala Education Bill, 1957
AIR 1958 SC 956: 1958 Ker LT 465: 1959 SCR 995: ILR 1958 Ker 1167
JUDGES: S.R. Das, CJ, N.H. Bhagwati, T.L. Venkatarama Ayyar, B.P. Sinha, S.J. Imam, S.K. Das and J.L. Kapur, JJ.
Date of Decision: 22-5-1958

The reference had been made by the then President of India under article 143(1) of the Constitution of India for the opinion of Supreme Court on certain questions of law of considerable public importance that had arisen out of or touching certain provisions of The Kerala Education Bill, 1957 which had been passed by the Legislative Assembly of the State of Kerala on 2nd September, 1957 and was under article 200 reserved by the then Governor of Kerala for consideration of the then President of India. After reciting the fact of the passing of Kerala and of the reservation thereof by its Governor for the consideration of the President and after setting out some of the clauses of the said Bill and specifying the doubts that may be said to have arisen out of or touching the said clauses, the then President of India referred to the Supreme Court certain questions for consideration and report. It was also the fact that the said Bill not having yet received the assent of the President the doubts, leading upto the such reference could not obviously be said to have arisen out of the actual application of any specified section of an Act on the facts of any particular case and accordingly the questions that had been referred to Supreme Court for its consideration were necessary of an abstract or hypothetical nature and were not like specific issues raised in a particular case brought before a court by a party aggrieved by the operation of a particular law which he impugns.

The legislative power conferred upon a State Legislative Assembly by articles 245 and 246 is to be exercised under article 245 subject to the provisions and whether it is obligatory on the Supreme Court to entertain a reference and to report to the President its opinion thereon that, the court has 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.

It was held that the complaint that the questions referred to relate to the validity, not of a statute brought into force but of a Bill which had yet to be passed into law by being accorded the assent of the President was not a good ground for not entertaining the reference, for article 143(i) did not contemplate the reference of a question of law that arose.

It was further held that the President was to determine what questions should be referred and if he did not entertain any serious doubt on the other provisions, it was not for any party to say that doubts arose out of them and the Supreme Court could not go beyond the reference and discuss those problems. And the circumstances that the President had not thought fit to refer other questions as to the constitutional validity of some of the clauses of the said Bill on the ground that they infringe other provisions of the Constitution could not be a good or cogent reason for declining to entertain the reference and answer the questions touching matters over or in respect of which the President entertained some doubt. And it was also held that any legislation could not override fundamental rights.

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