Part V: The Union

The Union Judiciary

Article 138: Enlargement of the jurisdiction of the Supreme Court

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(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.

Explanations

Article 138 of the Constitution of India pertains to the enlargement of the jurisdiction of the Supreme Court. It grants the Parliament and the Union government, along with state governments, the power to expand the jurisdiction and authority of the Supreme Court beyond its original constitutional role. This provision ensures the flexibility to adapt the jurisdiction of the Supreme Court based on evolving legal and administrative needs.

Clause-by-Clause Explanation

Clause (1): Jurisdiction over Matters in the Union List

This clause empowers the Parliament to confer additional jurisdiction and powers to the Supreme Court over matters listed in the Union List. The Union List, part of the Seventh Schedule, includes subjects on which only the Parliament can legislate, such as defense, foreign affairs, and atomic energy. Through this clause, the Parliament can extend the Supreme Court’s reach to handle cases that go beyond its constitutionally assigned original or appellate jurisdiction.

Real-life Example:

An example of the Parliament's power under this clause can be seen in the expansion of the Supreme Court's jurisdiction over matters like arbitration and tribunals. The Supreme Court now hears matters related to disputes arising from specialized tribunals, which are often listed under the Union List. This helps streamline the resolution of complex legal issues, particularly those involving central subjects.

An example of this provision in action can be seen in the expansion of the Supreme Court’s jurisdiction over issues related to the Armed Forces Tribunal. Parliament conferred upon the Supreme Court the jurisdiction to hear appeals from the tribunal, which deals with service matters of the Indian Armed Forces, an area under the Union List.

Clause (2): Special Agreements between the Government of India and State Governments

This clause enables the Supreme Court to assume additional jurisdiction based on agreements between the Union and State governments. Such agreements, however, must be sanctioned by Parliament through a law. This allows states and the central government to bring disputes to the Supreme Court even if they fall outside its standard jurisdiction.

Real-life Example:

One of the practical applications of this clause could be seen in inter-state water disputes. Although the Interstate River Water Disputes Act, 1956, deals with such issues, if both the central and concerned state governments agree, they can bring the case to the Supreme Court through a special agreement, extending the court’s jurisdiction to resolve these disputes.

A relevant example is the settlement of fiscal disputes between the central government and state governments. Through a special agreement, the governments involved may confer jurisdiction to the Supreme Court to resolve issues relating to the division of revenues or tax-sharing agreements under Article 138(2). This ensures that the judiciary can address and resolve financial matters that are essential for smooth federal relations.

Historical Significance

Though no specific amendments have been made to Article 138, its inclusion in the Constitution signifies the framers' foresight to adapt to future needs. The provision reflects the flexible nature of the judiciary, where the Parliament retains the ability to expand the Supreme Court's role when necessary. Historically, the role of the Supreme Court has expanded to include several areas, such as environmental law, public interest litigation, and human rights, reflecting this broader jurisdiction.

References

• The Constitution of India – Article 138
• Seventh Schedule, Union List – Constitution of India
• The Armed Forces Tribunal Act, 2007 (relating to appeals from tribunals to the Supreme Court)

Legislative History

Article 138 of the Indian Constitution, initially formulated and deliberated as article 114 of the Draft Constitution, was later incorporated into the final text of Indian Constitution on June 6, 1949.

Debates and Amendments

In the Constituent Assembly, Dr. Ambedkar mentioned that Shri Alladi Krishnaswami Ayyar had pointed out that the articles concerning the Supreme Court's powers did not explicitly cover appeals in income-tax cases. Dr. Ambedkar assured the assembly that he was examining the issue and would propose a special article to address it if necessary. Despite this, he recommended that Article 114 be included in the Constitution. Article 114 was adopted and added to the Constitution.