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Is The Original Jurisdiction Of The Supeme Court Necessary? Why?
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to 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 States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.
Supreme Court’s Original Jurisdiction
- (i) Writs
Article 32 of the Constitution guarantees the right to move the Supreme Court for enforcement of fundamental rights. Supreme Court has power to issue directions or orders or writs including the writs in the nature of Habeaus Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may be appropriate, for enforcement of these rights.
- (ii) Original Suits
Article 131 of the Constitution grants exclusive jurisdiction to the Supreme Court in any dispute between a) Government of India and one or more states or b) between Government of India and any state or states on one side and one or more other states on the other side c) between two or more states, insofar as such disputes involve any question on which the existence or extent of a legal right depends.
- (iii) Transfer Of Cases
(a) Article 139A(1) of the Constitution, provides that 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 made by the Attorney-General for India or by a party to any such case, that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself.
(b) Article 139A(2) of the Constitution, provides that the Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending 15 before any High Court to any other High Court.
(c) Section 25 of Code of Civil Procedure, provides that Supreme Court may transfer any suit, appeal or other proceedings from a High Court or other civil court in one state to a High Court or other civil court to any other state.
(d) Section 406 of Code of Criminal Procedure, provides that Supreme Court may transfer any particular case or appeal from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction, subordinate to another high court.
- (iv) Election disputes: Article 71 of the Constitution, provides that all doubts and disputes relating to election of a President or Vice-President are required to be enquired into and decided by the supreme court.
“Legal Right” – The Crucial Expression Implied In Article 131
The principal provision in the Constitution, that is relevant to the subject of the project is contained in article 131 of the Constitution. The proviso itself was amended by the Constitution (7th Amendment) Act, 1956. The article (in its present form) reads as under:-
Original jurisdiction of the Supreme Court. – Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute –
(a) Between the Government of India and one or more States; or
(b) Between the Government of India and any State or States on one side and one or more other States on the other; or
(c) 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:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides, that the said jurisdiction shall not extend to such a dispute.”.
Although article 131 of the of the Constitution is very widely worded – covering, as it does, both questions of fact and of law it must be kept in mind, that it is applicable, only “if and in so far as the dispute involves any question, on which the existence or extent of a legal right depends”.
In this connection, it would be proper to refer to a judgment of the Federal Court, on section 204 of the Government of India, Act 1935. In that case, the plaintiff brought a suit against the defendant for the recovery of certain sums of money, which, he alleged, were wrongfully credited to the Cantonment fund. The defendant, inter alia, pleaded that since no suit could be instituted by a Province against the Government of India under the law prevailing at the relevant period, the dispute was one which was not justiciable before the Federal Court in its original jurisdiction. The Federal Court held, that the suit would lie, because the dispute involved a question on which the existence or extent of a legal right depended. In the course of the judgment, Sulaiman, J. said:
“The term ‘legal right’, used in section 204, obviously means a right recognised by law and capable of being enforced by the power of a State, but not necessarily in a court of law. It is a right of an authority recognised and protected by a rule of law, a violation of which would be a legal wrong to his interest and respect for which is a legal duty, even though no action may actually lie. The only ingredients seem to be a legal recognition and a legal protection. The mere fact that under the previous Act the Provincial Governments were subordinate administrations under the control of the Central Government and could only have made a representation to the Governor-General-in-Council or the Secretary of State, would not be sufficient, in itself, for holding that the former could not possibly possess any legal right, at all, against the Central Government, even in respect of rights conferred upon them by the provisions of the Act or the rules made there under”.
The crucial expression in article 131, is the expression “legal right”. This expression has the effect of excluding all controversies involving only non-legal issues from the jurisdiction of the Court. However, unlike the scheme of the Code of Civil Procedure, which requires (inter alia) that the person coming to court (i.e. the plaintiff) must have a cause of action in his favour, article 131 does not prescribe that the legal right, asserted or denied in the proceeding in question, must be that of the party invoking the jurisdiction of the court or of the party against whom such jurisdiction is invoked – as the case may be.
This aspect is illustrated by the following two decisions of the Supreme Court, noted below –
- (i) State of Rajasthan Vs. Union of India, AIR 1971 SC 1361.
- (ii) State of Karnataka Vs. Union of India, AIR 1978 SC 68.
In the first case, the main question at issue related to the scope of the President’s powers (under article 356 of the Constitution), to suspend the constitutional machinery of the State.
In the second case, the question mainly related to the existence of a power, in the Central Government, to appoint a Commission of Inquiry to inquire into the conduct of Ministers of the State in the discharge of their official functions. In both the cases, the jurisdiction of, the Supreme Court was held to have been properly invoked.
The Rajasthan Case
The facts of the case from Rajasthan – State of Rajasthan Vs. Union of India, AIR 1977 SC 1361: (1977) 3 SCC 592, are equally interesting. In 1977 (after 19 months of the Emergency), a peculiar situation arose. In the country as a whole, one party was voted to power (through Parliamentary election) by an overwhelming majority. At the same time, in nine States, another party was already in power. The Central Government was of the view, that in these States, the Government should seek a fresh mandate from the electorate. A letter to that effect was addressed by the Home Minister to the Chief Ministers of the States. Apprehending that the letter would be followed by the issue of a Presidential Proclamation under article 356 of the Constitution, the States moved the Supreme Court, questioning the validity of such a Proclamation in the circumstances of the case.
The Supreme Court held that it had jurisdiction to entertain the proceeding. In the end, however, the court decided that the apprehended Proclamation would be valid [Incidentally, the judgment also contains a detailed discussion of the scope of judicial review, in regard to Presidential action under article 356].
The Karnataka Case
In fact, in this context, it may be worthwhile to examine in some detail the facts of the case from Karnataka – State of Karnataka Vs. Union of India, AIR 1978 SC 68 para 53.
In that case, the Central Government had issued a notification under section 3 of the Commissions of Inquiry Act, 1952, to inquire into the conduct of certain Ministers of the State Government of Karnataka (including the Chief Minister). The State Government challenged the legality of this notification, mainly raising a constitutional issue connected with federalism. The principal point raised was, that the scheme of the Constitution was that the State Cabinet was collectively responsible to the State Legislative Assembly [article 164 (2) of the Constitution]. The Constitution did not contemplate a parallel overseeing of the State Cabinet (or its members) by the Centre. In the end, the contention of the State Government failed. But the jurisdiction of the Supreme Court (under article 131) to go into the above question was upheld. The point that is relevant for the present purpose, is the fact that by a majority judgment, the proceeding was held to be maintainable and it was specifically held, that in this context, the supposed distinction between the State (an abstract entity) and the State Government (its concrete representative), was immaterial.
Scope And Ambit Of Article
At this stage, it may perhaps be proper to point out, that the jurisdiction of the Supreme Court under article 131 is not confined to disputes relating to specified or particularized controversies. Subject to certain other provisions of the Constitution (which expressly or by implication exclude this jurisdiction), article 131 confers on the Supreme Court’s original jurisdiction “in any dispute” (between the federation and its units, or between the units themselves). The jurisdiction is extremely wide, provided the dispute is a justiciable one. The intention of the Constitution-makers is, that such disputes should not be subjected to several tiers of the judicial hierarchy, but should come, for once and for all, before the highest court of the land
Public Law Element
It further appears that some element of “public law” should form a component of the dispute that can be brought before the Supreme Court under article 131. For example, disputes exclusively pertaining to ordinary business or commercial transactions are outside article 131.
(a) In article 131, the words “any question (whether of fact, or of law) on which the existence or extent of a legal right depends”, are words which seem, on the one hand, to amplify the scope of the article and, on the other hand, to qualify its scope.
(b) Thus, on the one hand, these words indicate that factual controversies are not excluded,
(c) At the same time, the controversy to be brought before the court must relate to a legal right. It is for this reason, that purely political questions are outside the scope of article 131.
Parties To The Dispute
The language of article 131 makes it clear, that the dispute to be brought before the court must be between Government of India and a State/s or between two or more States.This is, in fact, evident from the very terms of clauses (a) (b) and (c) of article 131, itself.
A claim by a private individual cannot be entertained under article 131,
The spirit of the Constitution might demand that the Supreme Court’s jurisdiction should be exclusive in such matters. It is not proper, that a court lower than the Supreme Court should decide such questions. The Supreme Court should be given exclusive jurisdiction in controversies concerning the distribution of legislative powers, which have an all-India repercussion. For example, if a State law imposing a tax on, say, the assignment of copyright, is challenged by a publisher, the decision (of a court other than the Supreme Court) upholding or invalidating the State law, may have an impact which far transcends the frontiers of the particular State in which the decision is pronounced. Similar questions can arise in other States. Uniformity of approach is the first desideratum in regard to such questions. Besides this, if the matter is allowed to be decided by, say, the High Court and thereafter taken (if necessary) by appeal to the Supreme Court, the process would be time-consuming and most inconvenient. In the intervening period, there is bound to prevail considerable confusion and uncertainty; and serious inconvenience would be occasioned thereby.
A reasonable interpretation should, therefore, be placed on article 131 of the Constitution and the Supreme Court should be regarded as having exclusive jurisdiction, if a question involving the distribution of power arises, and at least one of the parties is a Government. The accidents of litigation, and the question whether the point arises between two Governments or between Government and other parties, should not be regarded as conclusive.
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