Supreme Court Rules, 2013 | Order XLII
Special Reference under Article 143 of the Constitution
A guide to the Supreme Court's advisory jurisdiction, presidential references and the five procedural rules governing their consideration.
Meaning and constitutional basis
Article 143 of the Constitution of India establishes the Supreme Court's advisory jurisdiction. Under clause (1), the President may refer a question of law or fact of public importance that has arisen or is likely to arise, and the Supreme Court may, after such hearing as it thinks fit, report its opinion to the President. Clause (2) concerns references involving disputes described in the proviso to Article 131; the Court shall, after such hearing as it thinks fit, report its opinion.
An Article 143 reference is not an ordinary appeal or a petition seeking relief between private parties. Order XLII of the Supreme Court Rules, 2013 provides the procedural framework for receipt of a reference, notice, participation, hearing, reporting and costs. The Court retains control of the procedure and the parties to be heard.
Procedure at a glance
Order XLII - Full text of Rules 1 to 5
The following provisions reproduce the five rules contained in the source page.
Rule 1 - Receipt of presidential reference and notice
1. On the receipt by the Registrar of the Order of the President referring a question of law or fact to the Court under article 143 of the Constitution the Registrar shall give notice to the Attorney-General for India to appear before the Court on a day specified in the notice to take the directions of the Court as to the parties who shall be served with notice of such reference, and the Court may, if it considers it desirable, order that notice of such reference, shall be served upon such parties as may be named in the order.
Rule 2 - Directions for participating parties
2. Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect, to the date of the hearing.
Rule 3 - Procedure applicable to a special reference
3. Subject to the provisions of this Order, on a reference under article 143 of the Constitution, the Court shall follow as nearly as may be the same procedure as is followed in proceedings before the Court in the exercise of its original jurisdiction, but with such variations as may appear to the Court to be appropriate and as the Court may direct.
Rule 4 - Transmission of the Court's report
4. After the hearing of the reference under article 143 of the Constitution the Registrar shall transmit to the President the report of the Court thereon.
Rule 5 - Costs of parties appearing
5. The Court may make such order as it thinks fit as to the costs of all parties served with notice under these rules and appearing at the hearing of the reference under article 143 of the Constitution.
Practical explanation
Initiation: A reference originates from an order of the President, not from a litigant's appeal. The Registrar notifies the Attorney-General for India so the Court can decide which parties should receive notice.
Hearing: The Court directs whether and how interested parties may participate, what written statements are required, and when arguments will be heard. Rules governing original jurisdiction may be followed with appropriate modifications.
Outcome: After the hearing, the Registrar transmits the Supreme Court's report to the President. The Court may also make orders regarding costs of participating parties.
Official legal resources
Refer to the Supreme Court of India for current practice directions and rules, and to the Legislative Department's Constitution of India for the constitutional text. The procedural rules must be read with applicable amendments and subsequent Court directions.