This article is written by Gautam Badlani, a student of Chanakya National Law University, Patna. This article analyses the types of jurisdiction that are conferred on the Supreme Court. The Supreme Court has 6 types of jurisdiction: original, appellate, advisory, review, inherent, and extraordinary jurisdiction.
It has been published by Rachit Garg.
The Supreme Court of India is the court of final appeal and the highest Constitutional Court. In order to enable it to perform its sacred duties, it has been conferred with a very wide jurisdiction. The Court hears appeals from the orders of the subordinate courts, interprets and upholds the Constitution, safeguards and shields the fundamental rights of the citizens; and resolves inter-State disputes.
The history of the Supreme Court can be traced back to the Government of India Act, 1935. The Act established the Federal Court, which was responsible for adjudicating on the disputes between the federal states and provinces. Furthermore, the Federal Court was also empowered to hear appeals from the high courts.
The jurisdiction and powers of the Supreme Court are similar to those of the Federal Court. Article 124 of the Indian Constitution provides for the establishment of the Supreme Court. The Supreme Court became operational on 28th January, 1950, and the first judge to preside over the Supreme Court of India was Hon’ble Mr. Justice Harilal Jekisundas Kania.
Original jurisdiction of Supreme Court
Original jurisdiction is the power of the court to hear and adjudicate upon the matter as the court of first instance.
Article 131 elucidates the original jurisdiction of the Apex Court. It provides that the Court will be competent to exercise original jurisdiction:
- In disputes between the Union Government and one or more States
- In such disputes, where the Union Government and one or more states constitute one party and one or more states constitute the other party
- In disputes between two or more states
The disputes under this Article must raise a pertinent question of legal right. No other court has the power to try the disputes envisaged under this Article. The intent of the Constitution makers behind conferring such wide jurisdiction on the Apex Court was to ensure that the disputes of such nature are decided once and for all at the highest federal court.
However, the proviso to Article 131 states that the jurisdiction of the Supreme Court can be excluded by virtue of any treaty, agreement, or similar instrument. This Article is ostensibly based on Section 204 of the Government of India Act, 1935.
Moreover, the wording of Article 131 implies that it has to be read in accordance with and “subject” to other Constitutional provisions. Thus, the original jurisdiction under Article 131 can be restricted by other Constitutional provisions, such as in the case of disputes relating to the operation and distribution of inter-State river waters (Article 260) or Presidential recommendations to the Finance Commission under Article 280.
In the landmark case of State of Bihar v. Union of India (1969), the plaintiff was the State of Bihar and the defendants were the Union Government (1st defendant) along with Hindustan Steel Limited, Indian Iron and Steel Company Ltd. The plaintiff brought an action before the Court under Article 131 and the primary issue that came before the Court was whether the cause of action could be brought under the aforementioned Article.
The Court held that Article 131 requires the Court to adjudicate only on the legal right concerned and the Court is not required to adjudicate on the complete dispute. The Court further held that the petition under Article 131 was not maintainable as the dispute would fall within the ambit of Article 131 only if no private party was involved in the dispute. Even if the private party was impleaded jointly with the government, the petition would be beyond the scope of Article 131.
Furthermore, the Court enjoys original jurisdiction in matters relating to the enforcement of fundamental rights of individuals. Any individual can approach the Apex Court in case of violation of fundamental rights, and the Court can issue writs for granting the appropriate remedy. India adopted the concept of Writs from the British legal system, which empowers the courts to issue Prerogative Writs. Article 32 provides that the Court can issue the following for enforcement of fundamental rights:
- Habeas Corpus: Writ ordering the production of the detainee before the Court in order to ascertain whether the detention is legal or unlawful. By virtue of the effect of the 44th Constitutional Amendment, which provides that Article 21 cannot be suspended even at the time of a declaration of emergency, the writ of Habeas Corpus can be effectively issued at the time of emergency as well.
- Quo warranto: This writ is issued by a court to a public officer requiring him to explain the authority behind his actions. The public officer is required to prove the authority by which he is holding the office and exercising the powers of the public office. This writ is ordinarily issued against executive officers holding public offices.
- Mandamus: The Court issues a writ of Mandamus to direct a public official to resume the discharge of his public duty. It is pertinent to note that this writ cannot be issued against a private person, a high court chief justice, President of India or the Governor of any state.
- Prohibition: The Court issues this writ to prevent a subordinate court from exceeding or usurping its jurisdiction or from acting in contravention of the law. This writ is issued at the time when a subordinate court decides to try a matter in excess of its jurisdiction.
- Certiorari: Where the Subordinate Court decides a matter which is beyond its jurisdiction or where the matter is decided in contravention of the natural justice principles, the Court is empowered to issue the writ of certiorari, thereby setting aside or quashing the erroneous decision.
Where a common matter is pending before two or more high courts or before the Apex Court and one or more high courts, the Supreme Court, upon being satisfied that the concerned matter is of public importance, can withdraw the matter from the High Court and proceed to dispose of the matter itself.
Article 139A provides that when a matter involving a substantial question of law is pending before the Apex Court and also before any High Court or where such a matter is pending before two or more High Courts, the Court can withdraw the matter from the High Court and decide the matter by itself.
It is pertinent to note that the original jurisdiction of the Court, in respect to the enforcement of fundamental rights, is appellate and concurrent in nature and not exhaustive. This is essential as otherwise the citizens would have no remedy but to approach the Supreme Court in the event of violation of any fundamental rights.
Under Article 138, Parliament can confer original jurisdiction on the Supreme Court through the medium of legislation. For example, the Apex Court is empowered to commence International Commercial Arbitration by virtue of the Arbitration and Conciliation Act, 1996.
Advisory Jurisdiction of Supreme Court
Article 143 confers the advisory jurisdiction upon the Apex Court. The advisory opinion of the Supreme Court can be requested by the President on any question of law or fact which is of public importance and where the President considers obtaining such opinion to be expedient.
Similar to the original jurisdiction, the advisory jurisdiction also stems from the Government of India Act, 1935. Section 213(1) of the Government of India Act, 1935, provided for the advisory jurisdiction of the Federal Court. The essence of this Section was incorporated in Article 143 of the Constitution.
It is pertinent to note that the jurisdiction of the Court under Article 143 is merely advisory in nature and is not binding on the President or the Government. The Court does not pass any orders or decrees but merely gives its opinion, on the matter concerned, to the President.
Landmark case laws
- In the landmark case of Re: Keshav Singh, Legislative Assembly, Keshav Singh, along with his colleagues, had printed a pamphlet alleging that one of the MLAs was involved in corruption. Resultantly, he was summoned by the Legislative Assembly. While his colleagues appeared before the Assembly, Keshav did not follow the summons on grounds of financial constraints. The Assembly ordered his arrest. A petition was filed before the Allahabad High Court pleading that Keshav’s arrest was unconstitutional.
Subsequently, two judges of the High Court passed an order in favour of Keshav. The State Assembly passed a resolution ordering that the two judges be taken into the custody of the Assembly. The matter went before the Allahabad High Court and the 28 Judge Bench of the High Court passed an interim order staying the resolution of the Assembly.
Since the matter involved a dispute between the High Court and the State Assembly, the President sought the advisory opinion of the Supreme Court under Article 143. The Apex Court held that the Allahabad High Court was competent to hear the Habeas Corpus petition filed on behalf of Keshav as well as to pass the interim order against the Assembly resolution, and that the Assembly had no authority to order the detention of the judges.
It is pertinent to note that the Apex Court observed that the advisory opinion of the Court is not binding and it is at the discretion of the President whether to abide by the opinion or not. However, the opinion carries immense judicial weight.
- In the case of M. Ismail Faruqui v. Union of India, the President sought the advisory opinion of the Court on the issue of whether there was a temple at the sight of Babri Masjid. However, the Court held that the President must provide appropriate reasons for seeking the Court’s opinion. The Court further held that it was not bound to provide the advisory opinion where it considered the reasons to be improper. The Court thus refused to give its advisory opinion on the ground that the reference was superfluous.
- In Re: Kerala Education Bill v. Unknown (1958), the Kerala Education Bill, 1957 was passed by the Kerala State Legislature and the President had sought the opinion of the Apex Court on the constitutionality of some of its provisions. The Governor had not given his assent to the Bill and had sought the President’s consideration. The issue that came before the Court was whether advisory opinion could be sought in relation to the provisions of the Bill, which has not yet been incorporated as a statute. The Court made several observations regarding the scope and objectives of Article 143:
- The Court observed that Article 143(1) provides that the Court “may” give its opinion to the President on the matter referred to and hence the advisory opinion is a discretionary jurisdiction of the Court and the Court is not bound to give the opinion to the President.
- However, merely because a Bill has not become applicable as a law could be no grounds for the Court to decline to exercise its jurisdiction.
- The Court further noted that the purpose of Article 143 is to enable the President to clear his doubts regarding a question of law by referring the matter to the Supreme Court.
- The Court held that it would consider only the question that was referred to by the President and that it could not go beyond the scope of the question.
- The Court further drew a distinction between the reference made under Article 143(1) and Article 143(2). Article 143(2) provides that where such a matter as provided in the proviso to Article 131 is referred to the Court by the President, the Court “shall” provide its opinion to the President. The proviso to Article 131 excludes the original jurisdiction of the Court in relation to disputes arising out of agreements, treaties, or other such instruments which were entered into before the Constitution came into effect. The Court held that while Article 143(1) makes it discretionary for the Court to give its opinion, Article 143(2) makes it mandatory for the Court to give its opinion in matters referred to by the President.
Appellate Jurisdiction of Supreme Court
Articles 132 and 133 provide for the appellate jurisdiction of the Supreme Court. The Supreme Court can entertain an appeal against a High Court’s “judgment, decree or final order” provided that the High Court certifies that the matter involves a “substantial question of law“.
The expression “final order” means an order which would not give rise to any further action. In the case of Ramachand Manjimal v. Goverdhandas Vishindas Ratanchand, a stay order was granted by the judicial commissioner and it was further certified by him that the order was a final order. However, the Privy Council held that the order did not determine the rights of the parties finally and was yet to be determined. Hence, the order could not be said to be a final order.
In criminal matters, an appeal can be preferred before the Supreme Court where the High Court endorses, through a certificate, that the matter be appealed before the Supreme Court. It is pertinent to note that where a review is preferred on the basis of the High Court’s certificate, it is at the discretion of the Supreme Court whether to allow the review petition or not.
In the case of Mohinder Singh v. the State (1950), an appeal was preferred before the Apex Court from the judgment of the High Court of Punjab and Haryana. The High Court upheld the death sentence of the appellant. The Court held that the High Court is to give its certificate only in exceptional cases. The Court permitted the appeal on the ground that it was one of the special cases in which criminal appeal can be preferred as the accused had been convicted even though the evidence was insufficient. The Court set aside the conviction of the appellant.
An appeal can be made before the Apex Court without the endorsement of the High Court if either or both the following conditions are satisfied
- Where a person is sentenced to death by a High Court while reversing the order of acquittal.
- Where the High Court withdraws the matter from a subordinate court and conducts the trial and subsequently sentences the accused to death.
In Pritam Singh v. State (1950), it was held that where an appeal is preferred upon the fulfillment of any or both the aforementioned conditions, then review is claimed as a right.
Review Jurisdiction of Supreme Court
The Supreme Court enjoys review jurisdiction under Article 137 of the Constitution. This Article provides that the Supreme Court has the power to review its own judgments and orders. The review jurisdiction is also envisaged under Part VIII Order XL of the Supreme Court Rules, 1966.
A review application can be made before the Supreme Court within 30 days of the concerned judgment. Furthermore, the application must have the certification of an Advocate on Record.
It is pertinent to note that the review jurisdiction is based on the discretion of the court, and the court may refuse to review its earlier judgment. The Court usually exercises this jurisdiction when an error is discovered subsequent to the judgment and such error is believed to have caused a miscarriage of justice. Furthermore, if any material evidence is discovered subsequent to the judgment and such evidence could not be found earlier despite the best efforts of the party, then the Court may review its judgment. However, the Court will not exercise its review jurisdiction merely for trivial errors.
In the case of Union of India v. Sandur Manganese & Iron Ore Ltd., the review application was filed before the Court on the ground that the Court had incorrectly quoted the Expert Committee Report on which it had relied in the judgment. The Court, however, held that even if the wrongly quoted portion was deleted, the judgment would be the same and, hence, the clerical error could not be a ground for review. Further, the Court held that merely because an alternate view is possible to the dispute could not be a sufficient ground for invoking the review jurisdiction. Only when there is a grave error or omission in the judgment, the Court will permit a review.
Article 137 also provides that the review jurisdiction of the Court is subject to the laws enacted by Parliament under Article 145. Thus, the review jurisdiction of the Court is subject to Order XLVII Rule 1 of the Code of Civil Procedure, 1908. It provides for three grounds on which the review can be conducted. The grounds are
- Discovery of new evidence: The aggrieved party may appeal for review upon the discovery of new important evidence. However, it is pertinent to note that the party applying for review has to show that such new evidence could not be discovered earlier despite the exercise of due diligence by the party. If it is shown that the evidence was undiscovered at an earlier stage due to the negligence of the party, then the application would fail.
- Apparent error: Where there is an “error apparent on the face of the record,” then review can be permitted by the Court. The error must be a material one and should have adversely affected the appealing party. The error should be patently apparent without the need for any arguments.
In G.L.Gupta v. D.N. Mehta (1971), the Supreme Court permitted a review petition because Section 23C(2) of the Foreign Exchange Regulation Act, 1947 was not brought to the notice of the Court at the time of the proceedings. The Court consequently set aside the imprisonment sentence of the petitioners.
- Any sufficient reason: Where the Court feels that there is sufficient reason for permitting the review, it may allow the review application of the aggrieved party.
Inherent jurisdiction of Supreme Court
The Supreme Court of India also enjoys inherent jurisdiction. Under Article 136, the Court has the power to hear an appeal against the judgment, decree, or order of any court or tribunal situated within the territorial limits of India.
Furthermore, the Court has the power to punish for contempt under Article 229. The Court can take up a contest matter either by itself, i.e., suo moto, or on the recommendation of the Attorney or Solicitor General. Furthermore, any person can file a contempt petition before the Court.
In the case of Delhi Judicial Service Association v. State Of Gujarat (1991), the Apex Court held that it has the power to punish for not only its own contempt but also for the contempt of the courts subordinate to it. The Court further held that the power of granting appeals from the order of any court or tribunal within the country confers the Court with “supervisory jurisdiction over all courts in India.”
Extraordinary jurisdiction of Supreme Court
The extraordinary jurisdiction of the Supreme Court refers to the power of the Court to entertain public interest litigation (PIL). India adopted the concept of PIL from American jurisprudence. A PIL can be filed by any socially aware person to secure the public interest.
The first case of PIL was the case of Hussainara Khatoon v. State of Bihar (1979). In this case, an advocate filed a plea in the Apex Court, drawing the Court’s attention to the inhuman condition in which the undertrial prisoners were kept in Bihar prisons. The Court entertained the PIL and ordered the release of 40,000 undertrial prisoners.
Powers of Supreme Court
- The Supreme Court is empowered to interpret the Constitution and its interpretation is final.
- Article 141 of the Constitution provides a binding force to the laws declared by the Apex Court. The judgments of the Court have precedential value when dealing with the same question of law. Furthermore, the judgments of the Court have to be read as a whole. Even the ex-parte decisions of the Court are binding on the subordinate courts.
- The Supreme Court established the rules and procedures for its own functioning. Furthermore, the judges of the Apex Court are also appointed on the recommendation of the Court’s collegium.
- The Supreme Court has the power of judicial review. It can review the laws passed by the Legislature and can declare them void if they are found to be violating the fundamental rights or any other provision of the Constitution.
Furthermore, Article 137 provides the Court with the power to review its own judgments and orders.
- The Apex Court ensures that the fundamental rights of citizens are not violated and can also issue writs for the enforcement of fundamental rights.
- The Court can punish those who refuse to abide by its orders or those who make scandalous and derogatory remarks against the Court. The Apex Court’s power to punish for its contempt is envisaged under Article 129.
The Supreme Court is at the top of the hierarchy of courts in India. It enjoys a wide jurisdiction and is responsible for ensuring the rule of law in the country and keeping a check on the excesses of the legislature and executive. It is clear that the Supreme Court was conferred with the jurisdiction that was enjoyed by the Federal Court as well as the Privy Council. Parliament can even further extend the wide jurisdiction of the Court. However, no Act of Parliament can curtail or limit the inherent jurisdiction of the Court.
Frequently Asked Questions
Which Article confers upon Supreme Court the power to issue writs enforcing fundamental rights?
How wide is the jurisdiction of Supreme Court of India as compared to the top courts of other countries?
The Supreme Court of India can be said to have the widest jurisdiction as compared to the Federal Courts of other countries. In the United Kingdom, the Apex Court is not empowered to interpret the Constitution. In Ireland as well as Japan, the top courts do not enjoy federal jurisdiction for enforcement of fundamental rights. The Australian Supreme Court has no advisory jurisdiction.
As far as the US Supreme Court is concerned, the Court does not have the jurisdiction to hear certain appeals from the state courts. In India, the Supreme Court can hear appeals from all lower courts and tribunals. Furthermore, the US Supreme Court does not enjoy advisory jurisdiction either.
In which case was the doctrine of curative petition laid down?
In the landmark case of Rupa Ashok Hurra v. Ashok Hurra (2002), the question arose before the Court whether a second review could be preferred by the aggrieved person after the dismissal of the review petition. The five judge Constitutional Bench of the Court held that a second review, in the form of curative petition, can be permitted to rectify any gross miscarriage of justice. The Court thus held that the victim of a miscarriage of justice can prefer a second appeal from the final order of the Court. The Court had held that in the “rarest of rare cases“, due to the fallibility of humans, a need may arise for reconsideration and second review of the final order for rectifying a gross miscarriage of justice.
The concept of PIL was laid down in which case?
In the landmark case of Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others (1976). In this case, an appeal was preferred by the Labour Union in relation to a dispute between the workmen and their employers. The respondents contended that since the union was not a party to the dispute, it did not have any locus standi in the matter. The Court, however, extended the locus standi of the Union on the grounds of public interest. This case is considered to have initiated the evolution of public interest litigation in India.
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