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Important Notes

Scope of Original Jurisdiction of the Supreme Court in Protecting the Federal Structure


In any federal structure disputes between the Union and States or between States are bound to occur as the governments at the two tiers are given the powers to legislate and execute them as well. Such disputes generally arise when socio-economic or political or legal rights are alleged to have been violated. However, the Courts have been given the authority to deal only with the legal rights whereas, the disputes originating from the violation of other rights shall be dealt in by the Union and states themselves. This is to protect the constitutional scheme of a federal political structure. It is also a fact that if such disputes persist, they may lead to conflicts threatening the very smooth functioning of the federal structure. Especially in a country like India which is characterized by large scale diversity, such disputes may prove to be detrimental to the unity and integrity of the country also. Hence, these must be resolved amicably. Moreover, in recent years, when the regional and coalition politics have taken the driving seat and when regional aspirations have increased sharply in the era of populism, such disputes may be extremely dangerous so far as the federal structure and its existence is concerned.

The framers of the Constitution of India undoubtedly had considered the diverse nature of the country and must also had considered the centrifugation at the time of independence in the form of partition of India. Paying heed to the prevailing situation and also to the post-independence consolidation of the country, they provided the original jurisdiction of the Supreme Court to deal with all such issues leading to the resolution of such disputes. It is, therefore, pertinent to understand the meaning and concept of the original jurisdiction, but before that it would be appropriate to have a perusal of various types of jurisdictions of the Supreme Court of India, at least in brief.

Constitutional Position of the Supreme Court

Article 124 of the Constitution provides for a Supreme Court of India. The language of the article signifies that there shall be only one Supreme Court, further signifying that States cannot have their own Supreme Courts. This is so because under Article 1, India has been established as the Union of States and hence is a decentralised federation where the states are organised by the Union either by the process of admission, or establishment, or formation.1 A federal polity must also have a federal court to deal with the issues and concerns of the governments working at two tiers. Therefore, Article 135 says about the jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court. It writes, ‘Until Parliament by law provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.’ This makes the Supreme Court of India, a Federal Court also. Further, it is also established as the custodian and guardian of the Constitution and its sole interpreter. Considering its position, it is vested with the original, appellate, advisory and writ jurisdictions.2

Types of Jurisdictions of the Supreme Court

We know that the judiciary in India is fully independent and this independence is founded on the principle of Separation of Powers. However, it is generally apprehended that an independent judiciary may also become arbitrary. To avoid any such possible arbitrariness, the framers have vested all judicial powers in the Constitution itself. This has been recognised by the Court itself in L. Chandra Kumar case3 saying that although all judicial powers are vested in the Constitution, the independence of judiciary is well protected on the principle of separation of powers.

The Supreme Court enjoys original jurisdiction for resolving federal disputes. This jurisdiction will be dealt in details later in this article. Meanwhile, in brief, other jurisdictions are mentioned here with their significance, such as:

Appellate Jurisdiction

Article 132 to 136 (except article 135 which vests the powers of the federal court in the Supreme Court, as said earlier) deal with its appellate jurisdiction. Article 132 provides that appeals may be made in the Supreme Court from High Courts in certain constitutional matters with a certificate granted by the High Court under article 134 A [inserted by the Constitution (42nd Amendment) Act, 1976]. However, it is expressly mentioned that the case shall involve a substantial question of law as to the interpretation of the Constitution. Thus, the appellate jurisdiction of the Supreme Court also makes it the interpreter of the Constitution.  On the other hand, article 133 gives appellate jurisdiction of Supreme Court in civil matters which must involve substantial question of law of general importance. Likewise, in article 134, appeals can be made in the Supreme Court in criminal matters with or without a certificate from the High Court.  The situations in which an appeal can be made without the certificate from the High Court are as follows:

  1. If the High Court has on appeal reversed an order of acquittal of an accused person and has sentenced him to death; or

  2. If the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.

Under Article 136 the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in the territory of India. This may also be referred to as the ‘discretionary jurisdiction’ of the Supreme Court.

Advisory Jurisdiction

The President of India may consult the Supreme Court under article 143 to obtain its opinion upon certain matters of such nature and of such public importance that is expedient to obtain the opinion of the Supreme Court. This is considered the advisory jurisdiction of the Court. Again, it should be noted here that such matters should involve a substantial question of law only when it should be referred to the Court for obtaining its opinion. In other words, the President shall not seek advice on social, economic or other matters as these should be dealt in by the State itself on its own. The Supreme Court in article 143 (1) has a discretion to give its opinion. On the contrary, in article 143(2) the Court shall give its opinion on a dispute of the kind mentioned in the proviso of article 1314.

Writ Jurisdiction

The Supreme Court is responsible for protection of fundamental rights and also for their enforcement. For this purpose, article 139 confers on the Supreme Court of powers to issue certain writs, stating that Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for any purposes other than those mentioned in clause (2) of article 32. Thus, the authority to issue writs comes from this article and for the purpose of enforcement of fundamental rights under article 32.

After having a brief idea of all the types of jurisdictions of the Supreme Court, now let us delve into the details of the original jurisdiction and its scope especially in the context of protection of the federal structure of India.

Original Jurisdiction

Article 131. 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-

  • 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 insofar 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 dispute.]

Original jurisdiction of a court relates to the origin of a case that is the authority of the court to hear a case for the first time. This is the reason why original jurisdictions are not provided to appellate courts as these are responsible to review cases that have already been decided. Moreover, the courts having original jurisdiction also inherently have ‘exclusive jurisdiction.’ This means that a particular case shall be heard only in a particular court. Thus, article 131 of the Constitution provides original jurisdiction of the Supreme Court which inherently also includes its exclusive jurisdiction. Courts having original jurisdiction assume greater significance in a federal political structure. This is so because it contributes to protecting the legal rights of both the governments working at two different levels with their legislative authorities. In State of Karnataka v Union of India5 the Court held that for the Supreme Court to accept a suit under Article 131, the state need not show that its legal right is violated, but only that the dispute involves a legal question.

Comparatively, Article III, Section 2 of the US Constitution 1789 says that ‘the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State- between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.’

An important feature of the USW Constitution is that it does not say that original jurisdiction vested in the Supreme Court should be exclusive. However, in Marbury v. Madison case6 the Court held that some parts of the constitutional provision could be understood as exclusive. The Judiciary Act of 1789 also provided, in section 13, that while in some instances the original jurisdiction of the Supreme Court shall be exclusive, it will not be such in some others.

The Judicial Code of 1948, provides that the original and exclusive jurisdiction of the Supreme Court lies in

  • All controversies between two or more States;

  • All actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants, not inconsistent with the law of nations.

  • Without any doubt, to adjudicate disputes between the members of the Union is the most important function of the Court in the exercise of its original jurisdiction.

On the other hand, Switzerland has the federal judiciary comprising the Federal Supreme Court, the Federal Criminal Court, the Federal Patent Court and the Federal Administrative Court. Of these, the Federal Supreme Court is the supreme judicial authority and enjoys appellate and original jurisdictions. Article 189 of the Federal Constitution of Swiss Confederation 1999 provides that the Federal Supreme Court hears disputes concerning violations of: a. federal law; b. international law; c. inter-cantonal law; d. cantonal constitutional rights; e. the autonomy of the communes and other cantonal guarantees in favour of public law corporations; f. federal and cantonal provisions on political rights. It hears disputes between the Confederation and Cantons or between Cantons. This highlights the original jurisdiction of the Supreme Court.

In Australia, under Section 75 of the Commonwealth of Australia Constitution Act, 1901 the High Court has been provided with the original jurisdiction in the following matters:

  • Arising under any treaty;

  • Affecting consuls or other representatives of other countries;

  • In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party;

  • Between the states, or between residents of different states, or between a state and a resident of another state;

  • In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

In Re. Judiciary and Navigation Acts7 provides that for invoking the original jurisdiction the Court shall find out whether there is some immediate right, duty or liability is involved. In other words, the Court shall not entertain any political question, rather, the original jurisdiction shall be invoked only when in any matter a question of law is involved.

Coming back to the Indian context, as said earlier the disputes arising out of the infringement of legal rights shall be resolved by the Supreme Court of India exercising its original jurisdiction. Under Article 131, the Supreme Court can take cognizance of a dispute involving a question of law or fact on which the existence of a legal right depends. The Court has held that all that is necessary is that it must be a legal right.8 In this backdrop, another reference could be made here that a dispute between a State and a public sector undertaking registered under the Companies Act, does not fall within the original jurisdiction of the Supreme Court, because according to the court such an undertaking is not a ‘State’ for the purpose of Article 131.9

A general rule is that the original jurisdiction shall not extend to the disputes arising out of the issues as provided in the proviso of Article 131, however, exceptionally, under Article 143 (2), the President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. Thus, though the original jurisdiction does not apply directly on such disputes, it is the advisory jurisdiction of the Supreme Court under Article 143 which may suffice.

So far as, inter-state water disputes are concerned, section 11 of the Inter-State Water Disputes Act, 1956 provides that neither the Supreme Court nor any other court shall have jurisdiction in respect of any water dispute which could be referred to a Tribunal under the Act. Similarly, disputes arising out of sharing of revenue between the Union and States as per the recommendations of the Finance Commission shall not come under the purview of the original jurisdiction of the Supreme Court.

Concluding Remarks

The scope of the original jurisdiction under Article 131 of the Constitution of India signifies that it applies only to such disputes arising out of the matters in which a substantial question of law or fact is involved. The idea is to protect the federal principles of India’s unitary federation. Exclusion of political, social and economic matters from the purview of the original jurisdiction is to make the state responsible and accountable for resolving such disputes. Conclusively, the original jurisdiction of the Supreme Court aims at protecting the constitutional scheme of India as a Union of States.


  1. Article 2 and 3 of the Constitution of India.

  2. Article 131: Original Jurisdiction, Article 132-136: Appellate Jurisdiction, Article 139: Writ Jurisdiction and Article 143: Advisory Jurisdiction.

  3. Chandra Kumar v. Union of India AIR 1997 SC 1125

  4. 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 dispute.

  5. AIR 1978 SC 68

  6. 5 US 137 (1803)

  7. (1921) 29 CLR 257 (265)

  8. State of Rajasthan v. Union of India AIR 1977 SC 1361

  9. State of Bihar v. Union of India AIR 1970 SC 1446

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