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constitutional_law:part-2:powers-and-jurisdiction-supreme-court

Powers and Jurisdiction of the Supreme Court

Article 129 provides that the Supreme Court shall be a Court of record and shall have all powers of such a Court. Being the highest court of the land, its proceedings, acts and decisions are kept on record for perpetual memory and for presentation as evidence, in support of the law. Being a Court of record it implies that its records can be used as evidence and cannot be questioned for their authenticity in any court. Court of record also means that it can punish for its own contempt. But this is a summary power, used rarely and under pressing circumstances. It does not restrict genuine and well intentioned criticism of Court and its functioning. Fair and reasonable criticism of judicial acts in the interest of public good does not constitute the contempt.

Jurisdiction

The Supreme Court has original, appellate and advisory jurisdictions.

Original Jurisdiction

Original Jurisdiction means the power to hear and determine a dispute in the first instance. The Supreme Court has been given exclusive Original Jurisdiction which extends to disputes:

  • between the Government of India and one or more States.
  • between the Government of India and one or more States on one side and one or more States on the other.
  • between two or more States.

The Supreme Court in its original jurisdiction cannot entertain any suits brought by individuals against the Government of India. The dispute relating to the original jurisdiction of the Court must involve a question of law or fact on which the existence of legal right depends. This means that the Court has no jurisdiction in matters of political nature.

However, this jurisdiction shall not extend to a dispute arising out of a treaty, agreement etc. which is in operation and excludes such jurisdiction (Article 131).

The jurisdiction of Supreme Court also excludes in inter-State water disputes (Article 262), matters referred to the Finance Commission (Article 280) and adjustment of certain expenses and pensions between the Union and States (Article 290).

If any dispute is to be brought before the Supreme Court, it must involve a question of law on which the legal right depends. Under Article 139A, the Supreme Court may transfer to itself cases from one or more High Courts if these involve questions of law or of great importance. The Supreme Court may transfer cases from one High Court to another in the interest of justice.

The Original Jurisdiction of the Supreme Court also extends to cases of violation of the Fundamental Rights of individuals and the Court can issue several Writs for the enforcement of these rights (Article 32). It is a unique feature of our Constitution that in principle, any individual can straightway approach the highest Court in case of violation of his/her Fundamental Rights.

Appellate Jurisdiction

The Appellate Jurisdiction of the Supreme Court extends to civil, criminal and constitutional matters. In a civil matter, an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court if the High Court certifies under Article 134A that a ‘substantial question of law’ of general importance is involved and the matter needs to be decided by the Supreme Court. The High Court grants certificate only where there have been exceptional circumstances where substantial and grave injustice has been done. Thus, a certificate cannot be granted by the High Court on mere question of fact, where no substantial question of law is involved.

In criminal cases, an appeal to the Supreme Court shall if the High Court:

  • has reversed an order of acquittal of an accused person and sentenced him to death.
  • has withdrawn for trial before itself any case from any subordinate court to its authority and has in such trial convicted the accused person and sentenced him to death (Article 134).

It is to be noted that before the commencement of the Constitution, there was a Federal Court in India. It was created by the Government of India Act 1935 and has been abolished by the Constitution of independent India. Article 135 was included in the Constitution to enable the Supreme Court to exercise jurisdiction in respect of matters where the Federal Court had the jurisdiction.

Under Article 136 the Supreme Court, by its own, may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. These powers of the Supreme Court to grant ‘special leave to appeal’ are far wider than the High Court. The Supreme Court can grant special leave against judgments of any court or tribunal in the territory, except the military courts, and in any type of cases, criminal or revenue. But the Supreme Court has itself said that it will grant special leave to appeal only in cases where there has been gross miscarriage of justice or where the High Court or Tribunal is found to have been wrong in law. So, it is not taken as a usual practice.

A ‘Tribunal’ is a body of authority although not a Court, having all the attributes of a Court, which has judicial powers to adjudicate on the question of law or fact affecting the rights to citizens in a judicial manner.

Article 137 provides for the Supreme Court having the power to review its own judgments and orders. The Supreme Court has held that a judgement of the apex Court of the land is final. A review of such a judgement is an exceptional phenomenon, permitted only where a grave error is made out.

Advisory Functions

Article 143 of the Constitution confers upon the Supreme Court the Advisory Jurisdiction. The President may seek opinion of the Supreme Court on any question of law or fact of public importance on which he/she thinks it is expedient to obtain such an opinion. On such references from the President, the Supreme Court may report to him/her its opinion thereon. The opinion is only advisory, which the President is free to follow or not to follow. Also, it depends upon the Supreme Court whether to give opinion or not depending on the case.

Article-139 lays down that Parliament may confer on the Supreme Court power to issue directions, orders or writs in matters not already covered under Article 32. Under Article-140, Parliament may supplement the powers of the Supreme Court to enable it to perform effectively the functions placed upon it under the Constitution. Law declared by the Supreme Court is binding on all courts in India under Article-141. Article-142 provides that the Supreme Court in exercise of its jurisdiction may pass such decrees or orders as necessary for doing complete justice. The decree or order made by the Court shall be enforceable throughout the territory of India in such a manner as prescribed by the Parliament. Until provision is made by the Parliament, the orders of the Court will be enforced in the manner prescribed by the President. For purpose of giving effect to the directions and decisions of the Supreme Court, all authorities, civil and judicial, in the territory of India, have been made subordinate to the authority of the Supreme Court (Article 144). The Supreme Court may from time to time, and with the approval of the President, make rules for regulating generally the practice and procedure of the Court.