Asif mahmood
The Supreme Court’s decision on presidential reference has stirred a debate. Some argue that it is a binding decision and some hold that it is just an advice and is not binding as a verdict of a court. Let’s examine what actually the situation is.
Apparently it is an advice but a deep read explains that it is a binding decision as well. How? Let me elaborate.
Four questions were asked by the President in his reference under article 186 of the Constitution:
1.Should Article 63-A have a limited or a broad, purpose-oriented interpretation?
2.Will the defecting members’ vote be counted, given equal weightage?
3.Will the defectors be disqualified for life?
4.Measures that can be taken to prevent defection, floor crossing and vote-buying
Now as this reference was sent under Article 186 of the Constitution , it will be of paramount importance that one must go through the text of the said article as to understand the spirit of that article.
ARTICLE 186:
Advisory Jurisdiction.
(1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.
Look at the wording of the article. It is an advisory jurisdiction of the court.
And Supreme Court shall and report its opinion on the question to the President.
So apparently it is just an opinion that is given while exercising the advisory jurisdiction. One may call it opinion or advice.
However in this decision the Supreme Court has declared that the decision is not made only under article 186; it is made under article 187 and article 184 as well.
Now this jurisdiction is not advisory. It is original jurisdiction of the Supreme Court.
So precisely it can be said that the decision in not just an opinion or advice ; it is a binding decision of the apex court.
