PRESIDENT OF INDIA Vs. KERALA EDUCATION BILL 1957

JUDGEMENT

(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) :-

(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 :