IN RE: THE KERALA EDUCATION BILL, 1957. REFERENCE UNDER ARTICLE 143(1) OF THE CONSTITUTION OF INDIA Vs. STATE

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 September 2, 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 the said Bill by the Legislative Assembly 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 question 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 section 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 for Ontario v. Hamilton Street Railway, 1903 AC 524:-

(3.) To the like effect are the observations of Lord Haldane in Attorney General for British Columbia v. Attorney-General for Canada, 1914 AC 153:-