CONSTITUTIONAL LAW II

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SYMBIOSIS LAW SCHOOL, NOIDA
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SUPREME COURT AS A FEDERAL COURT

It is almost an axiom that a Federal Constitution should provide for a Federal Court. Such a court is
necessary to decide disputes between the Federal Government and the Units and the Units inter se1. A
Federal Constitution has necessarily to be written2. Its interpretation in the light of changing circumstances
is a difficult problem and this is done by the Federal Court3. Lastly, a constitution, which guarantees some
fundamental rights, has to provide the means to protect those rights4. In a Federal Constitution, Federal
Court acts as the ultimate guardian of the fundamental rights of the people5.

As a Federal Court, our Supreme Court has original jurisdiction in any dispute (a) between the Union and
one or more States, or (b) between the Union 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 so far as the dispute involves any question
(whether of law or fact) on which the existence or extent of a legal right depends.6

Article 131 of the Indian Constitution contemplates rights recognised by law and capable of being enforced
by the power of the state but not necessarily in a court of law 7. If the above connotation is carried to its
logical end, rights under article 131 would comprise rights of the states and that of the union recognized
and protected by a rule of law, the violation of which would be a legal wrong and respect for which is a

1
Singh, K. (1964). The Jurisdiction of the Supreme Court of India (Evolution of provisions relating to it in the Constituent
Assembly of India). The Indian Journal of Political Science, 25(3/4), 192-199. Retrieved from
http://www.jstor.org/stable/41854030
2
ibid
3
ibid
4
ibid
5
ibid
6
Dam, S. (1964). Judiciary in India. The Indian Journal of Political Science, 25(3/4), 276-281. Retrieved from
http://www.jstor.org/stable/41854040
7
Koul, A. K. (1971). Article 131 Of The Indian Constitution: Some Observations. Journal Of The Indian Law Institute, 13(1), 121-
126. Retrieved March 19, 2017, from
http://14.139.60.114:8080/jspui/bitstream/123456789/16154/1/017_Article%20131%20of%20the%20Indian%20ConstitutionSo
me%20Observations%20(121-126).pdf
legal duty, even though no action may lie8. The only ingredient, therefore, of such rights seems to contain
legal recognition and legal protection, and not enforceability in a court of law9.

LEGISLATIVE HISTORY

Up to the passing of the Government of India Act, 1935, India was administered as a unitary state10. The
Act of 1935 created for the first time a Federation in India, under which the Provinces were allotted a
demarcated sphere of legislative activity11. This necessitated the constitution of a Federal Court to decide
the disputes arising between the units and to interpret the Constitution12. The Act of 1935 was introduced in
the Provinces from April 1, 1937, and the Federal Court started functioning from December, 193713.

In historical perspective, under the Government of India Act, 1935, the provinces could sue the central
government for their legal rights accruing to at the commencement of the Act of 1935, though at that time
they had no right of action against the central government14. The Federal Court was led to observe that,
The term ‘legal right’ used in section 204 obviously means right recognised
by law and capable of being enforced by the power of the State, but not
necessarily in a court of law.15

By section 204 of the Government of India Act, 1935, a forerunner to article 131 of the Indian
Constitution, the Federal Court was empowered with original jurisdiction in matters involving any question
(whether of law or fact) on which the existence or extent of a legal right depended16.

The description of suits in section 204 of the Government of India Act, 1935 makes it clear that the framers
of that Act, had made Federal Court a tribunal for the determination of disputes between the constituent
units of the federation and laid down the exact nature of the disputes which the Federal Court had
jurisdiction to decide17. Here it should not be ignored that under section 204 of the Government of India
Act, 1935, the Federal Courts jurisdiction of was limited to the pronouncement of a declaratory judgment.

8
Supra note 7
9
Supra note 7
10
Singh, K. (1964). The Jurisdiction of the Supreme Court of India (Evolution of provisions relating to it in the Constituent
Assembly of India). The Indian Journal of Political Science, 25(3/4), 192-199. Retrieved from
http://www.jstor.org/stable/41854030
11
ibid
12
ibid
13
ibid
14
Koul, A. K. (1971). Article 131 Of The Indian Constitution: Some Observations. Journal Of The Indian Law Institute, 13(1), 121-
126. Retrieved March 19, 2017, from
http://14.139.60.114:8080/jspui/bitstream/123456789/16154/1/017_Article%20131%20of%20the%20Indian%20ConstitutionSo
me%20Observations%20(121-126).pdf
15
ibid
16
ibid
17
ibid
Article 131 ofthe Indian Constitution on the other hand, does not delineate and define the nature of the
disputes which the Supreme Court might be called upon to decide as legal rights18. Rather the Supreme
Court used a loose, term that such 'legal rights' should arise in the context of constitution and the
Federation it sets up19.

ORIGINAL JURISDICTION OF THE INDIAN SUPREME COURT

The Supreme Court of India has both original and appellate Jurisdiction. Article 131 defines the exclusive
and original jurisdiction of the Supreme Court. It reads as under:
“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.)”

It may be noted that the original jurisdiction, under this article, covers disputes between the legal persons
and not private persons20. Unlike the American Supreme Court, the Indian Supreme Court has no original
jurisdiction in cases affecting ambassadors and public ministers21. Nor can the private individuals take a
case straight to the Supreme Court except when it involves fundamental rights22. The dispute between legal
persons must also involve a question of law or fact on which the existence or extent of the legal right
depends. It should be real and justiciable23.

The jurisdiction of the Supreme Court under this article is subject to other provisions of the Constitution.
Besides the limitations imposed by the proviso to Article 131, Parliament may according to Article 262 by
law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control

18
Supra note 14
19
Supra note 14
20
Singh, H. (1964). Judiciary in India. The Indian Journal of Political Science, 25(3/4), 301-306. Retrieved from
http://www.jstor.org/stable/41854043
21
ibid
22
ibid
23
ibid
of the waters of, or in, any inter-State river or rivervally24. Again notwithstanding anything in this
Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall
exercise jurisdiction in respect of any such dispute or complaint25. Thus Article 262 places wide authority
in the hands of Parliament in certain matters.

In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in
regard to enforcement of Fundamental Rights26. 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 them27. 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 Court28. 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 itself29. Under the
Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the
Supreme Court30.

CRITICAL ANALYSIS

Article 131 begins with the words "subject to the provisions of this Constitution" which means that where
jurisdiction has been given to other bodies under other provisions of the Constitution or jurisdiction of the
Supreme Court is excluded, the exclusive jurisdiction provision of Article 131 shall not apply as, for
example, under Articles 262 (inter-State water disputes), 280 (matters referred to Finance Commission), 290
(adjustment of certain expenses and pensions between the Union and the States), etc31.

In the case of State of Bihar v Union of India32, the state of Bihar had sued Union of India under Art.131 of
the Constitution in connection with the delayed delivery of iron and steel materials for its Gandak project.
The majority judgment delivered by Mr. Justice Mitter held, “So far as the proceedings of the Joint
Committee on Indian Constitutional Reform and the Report of the Committee on the same are concerned,
they make it clear that the object of conferring exclusive original jurisdiction on the Federal Court was that
the disputes of the kinds specified between the Federation and the Provinces as the constituents units of the

24
Supra note 20
25
Supra note 20
26
Jurisdiction of the Supreme Court. (n.d.). Retrieved March 20, 2017, from http://supremecourtofindia.nic.in/jurisdiction.htm
27
ibid
28
ibid
29
ibid
30
ibid
31
Article 131 - Original Jurisdiction of Supreme Court - LU APRIL 2016. (n.d.). Retrieved March 22, 2017, from
http://www.lawyersupdate.co.in/LU/4/2011.asp
32
1970 AIR 1446
Federation, should not be left to be decided by courts of law of a particular unit but by the highest tribunal in
the land which would be beyond the influence of any one constituent unit.”

Furthermore he observed that, “Although Article 131 does not define the scope of the disputes which this
court might be called upon to determine in the same way as section 204 of the Government of India Act, and
we do not find it necessary to do so, this much is certain that the legal right which is the subject of dispute
must arise in the context of the constitution and the federalism it sets up.”

It was also held that judgment under article 131 is declaratory, that is, the Supreme Court has the power to
declare the rights of the parties in disputes short of enforcement. The words of Justice Mitter were, “Article
131 does not prescribe that suit must be filed in the Supreme Court for the complete adjudication of the
disputes envisaged therein or the passing of a decree capable of execution in the ordinary way as the decree
of other courts are. It is open to an aggrieved party to present a petition to this court containing a full
statement of the relevant facts and praying for the declaration of its rights as against the other disputants.
Once that is done, the function of this Court under article 131 is at an end.”

In the case of State of Rajasthan v Union of India33, Justice M H Beg said, “The Union Government is
entitled to take political decisions. However, even if a political decision of the Government of India affects
legal rights of the State as a legal entity, the existence and extent of that right will be triable under Article
131. The question is, are legal rights of the State involved in the dispute? Article 131 speaks of a legal right.
That legal right must be that, of the State. The dispute about a legal right, its existence or extent, must be
capable of agitation between the Government of India and the States. The character of the dispute within the
scope of Article 131 that emerges is with regard to, a legal right which the States may be able to claim
against the Government. For example, the State as a party must affirm a legal right of its own which the
Government of India has denied or is interested in denying giving rise to a cause of action. For the purpose
of deciding whether Article 131 is attracted the subject matter of the dispute, therefore, assumes great
importance.”
He also stated when a dispute will fall under 131, “The absence of the expression "State Government" and
the use in its place of the expression "State" in art. 131, is said to furnish intrinsic evidence that for a suit to
fall under that Article, the dispute must arise between the Government of India and a State, not between the
Government of India and the Government of a State. The intrinsic evidence, it is argued, assumes greater
credibility in the context that the article does employ the expression "Government of India" when what was
meant was the government, as contradistinguished from the State.”

He also elaborated on the term “legal right” as sated under article 131, as, “The expression "legal right"
which occurs in art. 131 has to be understood in its proper perspective. In a strict sense, legal rights are
correlative of legal duties and are defined as interests which the law protects by imposing corresponding
33
1977 AIR 1361
duties on others. But in a generic sense, the word "right" is used to mean an immunity from the legal power
of another immunity is exemption from the power of another in the same way as liberty is exemption from
the right of another. Immunity, in shirt, is no-subjection.”

In the end, it can be said that the Supreme Court under article 131 of the Indian Constitution has become a
buckle which fastens the federation with states and states inter-se should embolden itself with the finality of
the judgment and assert its authority34. Let it be mentioned that its pillars are not standing on the force of the
state but on the will of the state. There is no possibility of the judgment not being obeyed by the federation
and the constituent units if it asserts itself under article 131 of the Indian Constitution35.

34
Supra note 14
35
Supra note 14
BIBLIOGRAPHY
JOURNALS:
 Dam, S. (n.d.). Judiciary in India. The Indian Journal of Political Science, 25, 276-281. Retrieved March
21, 2017, from http://www.jstor.org/stable/41854040
 Koul, A. K. (1971). Article 131 Of The Indian Constitution: Some Observations. Journal Of The Indian
Law Institute, 13(1), 121-126. Retrieved March 19, 2017, from
http://14.139.60.114:8080/jspui/bitstream/123456789/16154/1/017_Article%20131%20of%20the%20In
dian%20Constitution_Some%20Observations%20(121-126).pdf
 Singh, H. (1964). Judiciary in India. The Indian Journal of Political Science, 25(3/4), 301-306. Retrieved
from http://www.jstor.org/stable/41854043
 Singh, K. (1964). The Jurisdiction of the Supreme Court of India (Evolution of provisions relating to it in
the Constituent Assembly of India). The Indian Journal of Political Science, 25(3/4), 192-199. Retrieved
from http://www.jstor.org/stable/41854030

WEBSITES:
 Article 131 - Original Jurisdiction of Supreme Court - LU APRIL 2016. (n.d.). Retrieved March 22,
2017, from http://www.lawyersupdate.co.in/LU/4/2011.asp
 Jurisdiction of the Supreme Court. (n.d.). Retrieved March 20, 2017, from
http://supremecourtofindia.nic.in/jurisdiction.htm