Article 138 of the Indian Constitution empowers the Parliament to enlarge the jurisdiction and powers of the Supreme Court of India. While the Constitution itself vests the Supreme Court with specific original, appellate, and advisory jurisdictions, Article 138 provides a mechanism for Parliament to confer additional jurisdiction and powers on the highest court. This ensures flexibility in adapting the Court’s functions to the evolving needs of the legal system and governance.
This article outlines two distinct ways through which such an enlargement can take place, demonstrating the significant role Parliament plays in shaping the scope of the Supreme Court’s authority beyond the fundamental structure laid down in the Constitution.
Original Text
138. Enlargement of the jurisdiction of the Supreme Court.—
(1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.
(2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.
Detailed Explanation
Article 138 comprises two clauses, each describing a different method for the enlargement of the Supreme Court’s jurisdiction and powers:
- Clause (1): This clause grants Parliament the direct power to expand the Supreme Court’s jurisdiction and powers concerning any matter specified in the Union List (List I of the Seventh Schedule to the Constitution). The Union List contains subjects on which Parliament has exclusive legislative competence, such as defence, foreign affairs, railways, currency, etc. By enacting a law, Parliament can confer additional jurisdiction or powers on the Supreme Court that are not already provided for in the Constitution itself, as long as the subject matter relates to an item in the Union List. This allows Parliament to utilize the Supreme Court’s expertise in areas of national importance that fall under its legislative domain.
- Clause (2): This clause provides a mechanism for conferring further jurisdiction on the Supreme Court through an agreement between the executive governments—specifically, the Government of India and the Government of any State. This clause is broader than Clause (1) as it is not restricted to matters in the Union List; it can relate to “any matter.” However, this executive agreement alone is insufficient. The special agreement confers jurisdiction subject to a crucial condition: Parliament must, by law, provide for the exercise of such jurisdiction and powers by the Supreme Court. This means that even if the Union and a State government agree to confer certain jurisdiction on the Supreme Court, it will only become effective if Parliament passes a law enabling the Supreme Court to exercise that agreed-upon jurisdiction. This clause highlights the principle of cooperative federalism, allowing Union and State governments to mutually agree on referring matters to the apex court, but keeping parliamentary oversight as the final enabling authority.
Both clauses ensure that any enlargement of the Supreme Court’s jurisdiction and powers, beyond what is constitutionally defined, is ultimately subject to the will of Parliament expressed through legislation.
Detailed Notes
- Article 138 deals with the power to expand the jurisdiction and powers of the Supreme Court.
- It provides two distinct methods for conferring further jurisdiction on the Supreme Court, beyond the scope defined in other constitutional articles (like 131, 132, 133, 134, 136, 137).
- Under Clause (1):
- Parliament can, by law, confer further jurisdiction and powers on the Supreme Court.
- This power is restricted to matters specified in the Union List (List I of the Seventh Schedule).
- This is a direct power of Parliament to enlarge the SC’s role in subjects within the Union’s legislative domain.
- Under Clause (2):
- Further jurisdiction and powers can be conferred on the Supreme Court regarding any matter.
- This requires a “special agreement” between the Government of India and the Government of any State.
- The conferral by agreement is conditional upon Parliament enacting a law that provides for the exercise of such jurisdiction and powers by the Supreme Court.
- This method involves executive agreement between the Union and a State, validated and enabled by parliamentary law.
- Article 138 underscores the principle that while the Constitution lays down the core jurisdiction, Parliament has the authority to augment the Supreme Court’s functions through legislation.
- This article facilitates the adaptation of the Supreme Court’s role to address specific legal or administrative needs as decided by the legislature (in consultation with the executive in certain cases).
Additional Comments
- The power under Article 138(1) has been exercised by Parliament in the past, for instance, to vest the Supreme Court with jurisdiction to hear election petitions relating to presidential and vice-presidential elections, a matter within the Union List.
- Article 138 is distinct from Article 139, which specifically empowers Parliament to 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, for purposes other than those mentioned in Article 32. Article 139 is limited to expanding writ jurisdiction, whereas Article 138 allows for the conferral of broader jurisdiction and powers.
- The mechanism under Article 138(2) is less frequently invoked compared to Article 138(1).
- The power conferred under Article 138 is subject to the overall framework of the Constitution and cannot be used to alter the basic structure of the Constitution.
Summary
Article 138 of the Indian Constitution empowers Parliament to expand the Supreme Court’s jurisdiction and powers beyond those explicitly defined in other constitutional provisions. Under Clause (1), Parliament can, by law, confer additional jurisdiction and powers on the Supreme Court concerning any matter listed in the Union List. Clause (2) permits the conferral of further jurisdiction over any matter through a special agreement between the Union Government and a State Government, provided Parliament enacts a law enabling the Supreme Court to exercise that specific jurisdiction. This article highlights Parliament’s crucial role in augmenting the operational scope of the Supreme Court through legislative action.