diverse jurisdictions

The Supreme Court of India (Court) is a multi-jurisdictional court which exercises various jurisdictions. Itis the highest and the final Court of Appeal under the Constitution of India (Constitution). Various jurisdictions exercised by the Court include original, appellate, extraordinary, review and curative, suo motu jurisdiction and statutory appeals amongst others. This article gives a brief overview of the jurisdictions exercised by Court.

I. Original jurisdiction

Original jurisdiction means the lis which originates in the Court from the first instance. Original jurisdiction of the Court can be classified into the following:

(a) Article 131 of the Constitution.— Article 131 confers jurisdiction upon the Court to decide 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. Article 131 of the Constitution of India further provides, that the exclusive jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, or any 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.

(b) Article 32 of the Constitution.— Article 32 confers the power to the Court to exercise writ jurisdiction. A party can file a writ before the Court for enforcement of fundamental rights as envisaged in the Constitution. By virtue of Article 32, the Court can issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Another facet of Article 32 is public interest litigation commonly known as PIL, whereby the Court entertains matters in which interest of the public at large is involved. A PIL can be filed before the Court by any individual or group of individuals, by filing a writ petition. At times a letter addressed to the Chief Justice of India has also been treated as a PIL.

(c) Article 143 of the Constitution.— The Court exercises advisory jurisdiction under Article 143 of the Constitution. According to Article 143(1), if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it, the President may refer the question to the Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. It has been held by the Court that a reference is not to be returned unanswered on ground of form or pattern alone. It requires appropriate analysis, understanding and appreciation of content or issue on which opinion of Court is sought by President, keeping in view constitutional responsibility, juridical propriety and judicial discretion. The opinion of Court under advisory jurisdiction has persuasive value on all the subordinate courts in India under Article 1411.

(d) Article 139-A of the Constitution.— Article 139-A of the Constitution deals with the jurisdiction of the Court with respect to transfer of certain cases. According to Article 139-A(1), where cases involving substantially same questions of law are pending before the Court and one or more High Courts or before two or more High Courts and the Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all such cases itself.

The power of the Court to transfer certain cases is further widened by Article 139-A(2) which bestows upon the Court by providing that it may, if it deems expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Additionally, Section 25 of the Civil Procedure Code, 1908 and Section 406 of the Criminal Procedure Code, 1973 also deal with transfer of cases.

II. Appellate jurisdiction

Articles 132, 133 and 134 of the Constitution provide for appellate jurisdiction, provided a certificate is granted by the High Court concerned. According to Article 132 of the Constitution, an appeal shall lie to the Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of the Constitution. The expression “final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

9. … The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court. The word “certify” used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal. Mere grant of a certificate would, however, not preclude the Court from determining whether the conditions prerequisite for the grant are satisfied. It is, therefore, always desirable and expedient for the High Court concerned to give its reasons for granting the certificate, that would assist the Court in appreciating if the conditions prerequisite are satisfied2.

Article 133 of the Constitution of India provides for appellate jurisdiction of the Court in appeals from High Courts in regard to civil matters in a case where the High Court certifies under Article 134-A of the Constitution.

Article 134 of the Constitution gives power of appellate jurisdiction of Court in regard to criminal matters.

III. Extraordinary jurisdiction

The Court has been conferred extraordinary jurisdiction under Article 136 of the Constitution. Article 136 provides that the Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order passed or made by any court or tribunal in the territory of India. Thus, even against interim orders special leave petition can be preferred. The only restriction is under Article 136(2) with respect to armed forces. Special leave under Article 136 is granted at the discretion of the Court. The Court usually follows the basic principles such as question of law involved, miscarriage of justice, absence of a speaking order, non-interference in finding of facts, absence of efficacious and alternate remedy unavailable, interference where there are mixed questions of law and facts. It is the extraordinary jurisdiction of the Court that is used the most by the parties to file a lis.

IV. Review and curative jurisdiction

Article 137 of the Constitution provides for the review of judgments or orders by the Court. The Court has the power to review any judgment pronounced or order made by it provided that there is discovery of new and important matter or evidence which, even after the exercise of due diligence, was not within the knowledge of the litigant or could not be produced by him or a mistake or error apparent on the face of the record or for any other sufficient reason.

It has been held that exercise of Court’s powers of review must be for correction of a mistake and not to substitute a view taken in a judgment. Review proceedings are not in the nature of an appeal and have to be strictly confined to ambit of Order 47 Rule 1 of the Civil Procedure Code, 19083.

Curative petitions: The principle of curative petition evolved from the case of Rupa Ashok Hurra v. Ashok Hurra4 wherein it was observed that the Court can exercise curative jurisdiction under its inherent powers even after dismissal of review petition to prevent abuse of its process and to cure gross miscarriage of justice. In the aforementioned case, it was held that a petitioner is entitled to relief ex debito justitiae if he is able to firstly establish that principles of natural justice were violated and he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had the notice. Secondly, where in the proceedings a Judge has failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and as a result the judgment adversely affects the petitioner.

A curative petition is always filed after the dismissal of a review petition and must contain a certificate by a Senior Advocate with regard to the fulfilment of the requirements as outlined in the Supreme Court Rules, 2013.

V. Suo motu jurisdiction

Suo motu jurisdiction means the Court out of its own accord takes up matters where certain guidelines or directions are required in the interest of justice. Suo motu jurisdiction has been invoked by the Court on several crucial occasions. The Court recently while exercising its suo motu jurisdiction issued guidelines on measures to ensure well-being of children in child protection homes owing to the outbreak of COVID-195. It has also taken up suo motu cognizance of the menace that overcrowding of prisons can cause and have directed that an urgent action be taken to prevent the spread of COVID-19 in prisons across India6.

VI. Statutory appeals

Apart from exercising various jurisdictions, the Court also hears and decides appeals filed under various statues. For instance, an appeal lies under the Consumer Protection Act, 1986 against final order of the National Consumer Disputes Redressal Commission, Section 38 of the Advocates Act, 1961 provides for appeal to the Court by any person aggrieved by an order made by the Disciplinary Committee of the Bar Council of India under Section 36 or Section 37 of the Advocates Act, 1961 and Section 423 of the Companies Act, 2013 provides for an appeal to the Supreme Court of India against any order of the Appellate Tribunal, an appeal also lies to the Court from an order of the Appellate Tribunal for Electricity under the Electricity Act, 2003, etc.

†Senior Partner, Khaitan & Co.

††Principal Associate, Khaitan & Co., Advocate-on-Record, Supreme Court of India

1. Special Courts Bill, 1978, In re, (1979) 1 SCC 380.

2. Ahmedabad Mfg. & Calico Printing Co. Ltd. v. Ram Tahel Ramnand, (1972) 1 SCC 898, 905.

3. Union of India v. Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337.

4. (2002) 4 SCC 388.

5. Contagion of Covid-19 Virus in Children Protection Homes, In re, (2020) 15 SCC 280.

6. Contagion of Covid-19 Virus in Prisons, In re, (2020) 5 SCC 313.

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