The Supreme Court: Seat, Registry and Original Jurisdiction

Article 131: original jurisdiction

This is the article to know properly, because it is short, precise and easy to misstate.

Subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute:

• between the Government of India and one or more States; or
• between the Government of India and any State or States on one side and one or more other States on the other; or
• between two or more States,

if and in so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends.

Four things to notice, and each is a way the article is commonly misdescribed.

"Original" means the case begins in the Supreme Court; there is no court below.

"To the exclusion of any other court" means no other court may entertain such a dispute. A State cannot sue the Union in a High Court over a matter within article 131.

The parties are governments only. A citizen cannot invoke article 131, however constitutional his grievance. His route is article 32 or article 226.

And the last clause is the real limit. The dispute must involve a question on which the existence or extent of a legal right depends. A political disagreement between the Union and a State, however sharp, is not within article 131 unless a legal right turns on it.

The proviso to article 131 excludes disputes arising out of certain pre-Constitution treaties, agreements, covenants, engagements, sanads and similar instruments.

Compare section 204 of the Government of India Act 1935, which is the same jurisdiction in the same words for the Federation, the Provinces and the Federated States, with a proviso about States. The drafters copied it.

Article 139A: transfer of cases

Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts, or before two or more High Courts, and the Supreme Court is satisfied, on its own motion or on an application by the Attorney-General or by a party, that such questions are substantial questions of general importance, it may withdraw the cases to itself and dispose of them; and it may then return a case to the High Court with a copy of its judgment on the questions of law.

Clause (2) allows the Supreme Court, if it thinks it expedient for the ends of justice, to transfer any case, appeal or other proceedings from one High Court to another.

Article 139A is not in the Act of 1935 and it is not an original jurisdiction in the article 131 sense. It is an administrative power to prevent the same question of general importance being decided differently in several High Courts at once, and it was inserted by the Forty-second Amendment.

A worked example

Four disputes, and the article that fits each.

A State says the Union has wrongly withheld a share of taxes to which the State is entitled under a Finance Commission award. The parties are the Union and a State, and a legal right is in question. Article 131, and no High Court may take it.

A State says the Union's policy on a subject is politically hostile to it. The parties fit, but no legal right depends on the question. Not within article 131.

A citizen says a Union law violates his fundamental rights. Article 131 has nothing to do with it: the parties are wrong. His remedies are article 32 and article 226.

The same question about the validity of a central Act is pending in the Supreme Court and in four High Courts. Article 139A: the Supreme Court may withdraw the cases to itself and decide the question once.

What beginners get wrong

"Article 131 is the Supreme Court's writ jurisdiction." It is not. The writ jurisdiction is article 32, and article 139 empowers Parliament to confer on the Supreme Court the power to issue writs for purposes other than fundamental rights. Article 131 is a jurisdiction over disputes between governments.

"A citizen can file a suit under article 131 against the Union." He cannot. The parties named are the Government of India and the States.

"Any dispute between the Union and a State is within article 131." Only if and so far as it involves a question on which the existence or extent of a legal right depends.

"Article 129 gives the Supreme Court the power to punish contempt of any court." It gives the power to punish contempt of itself. Article 215 does the same for a High Court, and contempt of subordinate courts is dealt with under the Contempt of Courts Act and article 227.

Limits and criticism

Article 131 is used less than a student might expect, and the reason is worth stating because it says something about the Indian federation.

The article requires a legal right to be in question. Most disputes between the Union and the States in practice are about money, appointments, policy or the exercise of discretion, and they are settled politically, through the Finance Commission, the Inter-State Council or negotiation. When they do become legal, they are more often brought under article 32 by an affected citizen or under article 226 in a High Court than by a State under article 131, because those routes are quicker and the pleadings are easier.

The result is that the Supreme Court's original jurisdiction, which on paper is its most distinctively federal function, is a small part of its work, while article 136 and article 32, which are discretionary and citizen-facing, are almost all of it. That imbalance is the subject of a continuing debate about what the Court is for, and a student who notices it in a Semester 3 answer is thinking like a lawyer.

Quick revision

• 129: court of record, with all the powers of such a court including the power to punish for contempt of itself. Compare art. 215 for High Courts.
• 130: sits in Delhi or elsewhere as the Chief Justice of India with the President's approval appoints. Compare s.203 of the Act of 1935.
• 131: original, exclusive jurisdiction in disputes between the Government of India and States or between States, if and in so far as the dispute involves a question on which the existence or extent of a legal right depends. Compare s.204 of the Act of 1935. Proviso for pre-Constitution treaties and covenants.
• 139A: withdrawal to itself of cases raising the same substantial question of general importance pending in the Supreme Court and High Courts, and transfer of cases between High Courts.

Test yourself

1. State the three classes of dispute within article 131 and the limiting condition. Disputes between the Government of India and one or more States; between the Government of India and any State or States on one side and one or more other States on the other; and between two or more States. The condition is that the dispute must involve a question, whether of law or fact, on which the existence or extent of a legal right depends.

2. Can a citizen invoke article 131? No. The parties named are the Government of India and the States. A citizen's constitutional remedies are article 32 in the Supreme Court and article 226 in a High Court.

3. What does it mean that the Supreme Court is a court of record? That its proceedings are enrolled as a permanent record and that it has all the powers of such a court, including the inherent power to punish for contempt of itself. Under article 129 the power comes from the Constitution, so Parliament cannot take it away.

4. Who decides where the Supreme Court sits? It sits in Delhi, and may sit in such other places as the Chief Justice of India appoints with the approval of the President.

5. What problem does article 139A solve? The same substantial question of general importance being litigated at once in the Supreme Court and several High Courts. The Supreme Court may withdraw the cases to itself, decide the question, and where appropriate return a case to the High Court with a copy of its judgment.