- (1.) This reference has been made by the President under Art. 143 (1) of the Constitution of India for the opinion of this Court on certain questions of law of considerable public importance that have arisen out of or touching certain provisions of the Kerala Education Bill, 1957, hereinafter referred to as "the said Bill", which was passed by the Legislative Assembly of the State of Kerala on 2/09/1957, and was, under Art. 200, reserved by the Governor of Kerala for the consideration of the President. 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 President has referred to this Court certain questions hereinafter mentioned for consideration and report. It is to be noted that the said Bill not having yet received the assent of the President the doubts, leading up to this reference, cannot 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 have been referred to this Court for its consideration are necessarily of an abstract or hypothetical nature and are 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. Further, this reference has been characterised as incomplete and unsatisfactory in that, according to learned counsel appearing for some of the institutions it does not clearly bring out all the constitutional defects attaching to the provisions of the Bill and serious apprehension has been expressed by learned counsel before us that our opinion on these isolated abstract or hypothetical questions may very positively prejudice the interests, if not completely destroy the very existence, of the institutions they represent and, in the circumstances, we have been asked not to entertain this reference or give any advisory opinion on the questions put to us.
(2.) It may be of advantage to advert, at the outset, to the ambit and scope of the jurisdiction to be exercised by this Court under Art. 143 of the Constitution. There is no provision similar to this in the Constitution of the United States of America or in the Commonwealth of Australia Constitution Act, 1900 (63 and 64 Vic. Ch. 12) and, accordingly, the American Supreme Court as well as the High Court of Australia, holding that the jurisdiction and powers of the court extend only to the decision of concrete cases coming before it, have declined to give advisory opinions to the executive or legislative branches of the State. Under S. 60 of the Canadian Supreme Court Act, 1906, the Governor-General-in-Council may refer important questions of law concerning certain matters to the Supreme Court and the Supreme Court appears to have been held bound to entertain the reference and answer the questions put to it. Nevertheless, the Privy Council has pointed out the dangers of such advisory opinion and has, upon general principles deprecated such references. Said the Earl of Halsbury, L. C. , in Attorney General of Ontario v. Hamilton Street Railway, 1903 A C 524 at p. 529 (A) :- "They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given on such questions at all. When they arise, they must arise in concrete cases, involving private rights ; and it would be extremely unwise for any judicial Tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of the particular words when the concrete case is not before it. " To the like effect are the observations of Lord Haldane in Attorney General of British Columbia v. Attorney General of Canada, 1914 A C 153 at p. 162 (B). ".. Under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied. " Reference may, with advantage, be also made to the following observations of Lord Sankey, L. C. , in In re Regulation and Control of Aeronautics in Canada, 1932 A C 54 at p. 66 (C) : ".. . . It is undesirable that the Court should be called upon to express opinions which may affect the rights of persons not represented before it or touching matters of such a nature that its answers must be wholly ineffectual with regard to parties who are not and who cannot be brought before it- for example, foreign Government. " Section 4 of the Judicial Committee Act, 1833 (3 and 4 William IV, Ch. 41) provides that : "It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit and such Committee shall thereupon hear and consider the same and shall advise His Majesty thereon in manner aforesaid. " It is to be noted that it is made obligatory for the Judicial Committee to hear and consider the matter and advise His Majesty thereon. The Government of India Act, 1935, by S. 213 (1) , authorised the Governor-General to consult the Federal Court, if at any time it appeared to the Governor-General that there had arisen or was likely to arise a question of law which was of such a nature and of such public importance that it was expedient to obtain the opinion of the Federal Court upon it and empowered that Court, after such hearing as they thought fit, to report to the Governor-General thereon. This provision has since been reproduced word for word, except as to the name of the Court, in cl. (1) of Art. 143 of our Constitution. That Article has a new clause, being cl. (2) which empowers the President, notwithstanding anything in the proviso to Art. 131, to refer a dispute of the kind mentioned in the said clause to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. It is worthy of note that, while under cl. (2) it is obligatory on this Court to entertain a reference and to report to the President its opinion thereon, this Court has, under cl. (1) , 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. In view of the language used in S. 213 (1) , on which Art. 143 (1) of our Constitution is based, and having regard to the difference in the language employed in cls. (1) and (2) of our Art. 143 just alluded to, the scope of a reference made under Art. 143 (1) is obviously different from that of a reference under S. 4, Judicial Committee Act, 1833 and S. 60, Canadian Supreme Court Act, 1906, and this Court, under Art. 143 (1) , has a discretion in the matter and consequently the observations of their Lordships of the Privy Council quoted above are quite apposite and have to be borne in mind.
(3.) There have been all told four references by the Governor-General under S. 213 (1) , Government of India Act, 1935, and in two of them some of the Judges of the Federal Court have made observations on the ambit and scope of such a reference. Thus in In re, Allocation of Lands and Buildings, 1943-5 F C R 20 at p. 22 : (A I R 1943 F C 13 at p. 14) (D) , Gwyer, C. J. , said : "On considering the papers submitted with the case, we felt some doubt whether any useful purpose would be served by the giving of an opinion under S. 213 of the Act. The terms of that S. do not impose an obligation on the Court, though we should always be unwilling to decline to accept a Reference, except for good reason; and two difficulties presented themselves. First, it seemed that questions of title might sooner or later be involved, if the Government whose contentions found favour with the Court desired, as the papers show might be the case, to dispose of some of the lands in question to private individuals, and plainly no advisory opinion under S 213 would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under S. 204 (1) of the Act by one Government against the other. " In In re, Levy of Estate Duty, of the authorised report : "It may be stated at the outset that when Parliament has thought fit to enact S. 213 of the Constitution Act it is not in our judgment for the Court to insist on the inexpediency (according to a certain school of thought) of the advisory jurisdiction. Nor does it assist to say that the opinions expressed by the Court on the questions referred "will have no more effect than the opinions of the law officers"; Attorney-General for Ontario v. Attorney-General for Canada, (1912 AC 571) (E1). That is the necessary result of the jurisdiction being advisory. " Referring to the objection that the questions related to contemplated legislation and not to the validity or operation of a measure already passed, the learned Chief Justice observed at p. 321 (of F C R) "The fact that the questions referred relate to future legislation cannot by itself be regarded as a valid objection. S. 213 empowers the Governor-General to make a reference when questions of law are "likely to arise". . In this class of cases, the reference should, in the very nature of things, be made before the legislation has been introduced and the objection based upon the hypothetical character of the questions can have no force. We may, however, add that instances were brought to our notice in which references had been made under the corresponding provision in the Canadian Supreme Court Act when the matter was at the stage of a Bill. " Zafrulla Khan, J. , declined to entertain the reference and to answer the questions on high authority quoted and discussed elaborately in his separate opinion. The learned Judge, after pointing out in the earlier part of his opinion that it was "a jurisdiction the exercise of which on all occasions must be a matter of delicacy and caution", concluded his opinion with the following observations at p. 350 (of F C R) "In the state of the material made available to us I do not think any useful purpose would be served by my attempting to frame answers to the questions referred. Indeed, I apprehend, that any such attempt might result in the opinion delivered being made the foundation of endless litigation hereafter, apart altogether from any question relating to the vires of the proposed law and operating to the serious prejudice of persons whom it might be attempted to bring within the mischief of that law. It is bound to raise ghosts far more troublesome than any that it might serve to lay. For these reasons I am compelled respectfully to decline to express any opinion on the questions referred. ";