“(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(a) On any question of law or fact of public importance which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.
In the first case, the Supreme Court may tender or may refuse to tender its opinion, to the president. But, in the second case, the Supreme Court 'must' tender its opinion to the president.
In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it. So far, the president has made fourteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).
The Supreme Court may decline to give its opinion under Article 143 in cases it does not consider proper or not amenable to such exercise. It was held by the Supreme Court in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that in such a case, reasons must be indicated. In Ismail Faruqui case, the five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babri Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered.
The first reference under Article 143 was made in the Delhi Laws case (1951). In Delhi Laws Act case, the Court considered the validity of the Act with regard to delegated legislation.