JURISDICTION & POWERS OF THE SUPREME COURT OF INDIA

JURISDICTION & POWERS OF THE SUPREME COURT OF INDIA

Original · Appellate · Advisory · Writ · Review · Curative

ABSTRACT

This article provides a comprehensive, examination-focused analysis of the jurisdiction and powers of the Supreme Court of India — covering its original, appellate, and advisory jurisdiction under Articles 131–143; its writ jurisdiction and the doctrine of judicial review under Articles 32 and 226; and the remedies of review and curative petition under Article 137 and the Rupa Ashok Hurra jurisprudence.

Each section integrates the constitutional text, leading judgments, and the doctrinal principles most frequently tested in the AOR Examination conducted by the Supreme Court of India.*

CHAPTER I: ORIGINAL JURISDICTION OF THE SUPREME COURT

1.1 Constitutional Basis

The original jurisdiction of the Supreme Court of India is the power of the Court to hear and decide a dispute at first instance, without the matter having been adjudicated by any lower court. This is qualitatively different from appellate jurisdiction, which involves scrutiny of a decision already made.

The original jurisdiction of the Supreme Court is conferred primarily by Article 131 of the Constitution, supplemented by Article 32 (for the enforcement of Fundamental Rights). The Court thus exercises two distinct streams of original jurisdiction: inter-governmental disputes under Article 131, and constitutional remedy proceedings under Article 32.

1.2 Article 131 — Federal Dispute Jurisdiction

Article 131 vests in the Supreme Court exclusive original jurisdiction to adjudicate disputes of a federal character — that is, disputes arising between different units of the Indian federation. The constitutional text limits this jurisdiction to:

• The Government of India and one or more States;
• The Government of India and any State(s) on one side, and one or more States on the other side; and
• Two or more States inter se.

The critical qualification is that the dispute must involve a question — whether of law or of fact — upon which the existence or extent of a legal right depends. This limitation excludes purely political disputes, policy disagreements, and matters where no enforceable legal right is in question.

WHY ‘EXCLUSIVE’?

The exclusivity of Article 131 jurisdiction means that no High Court, no tribunal, and no other court can entertain a dispute that falls within its ambit.

This mirrors the position of the International Court of Justice in international law — the Supreme Court acts as the constitutional arbiter of federal relations, and its jurisdiction in this sphere is jealously guarded.

1.2.1 Essential Requirements for Invoking Article 131

• Existence of a dispute — not a mere grievance, advisory query, or policy difference. There must be a real and live controversy.
• The dispute must be between recognised constitutional entities — the Government of India and/or State Governments. Private parties, corporations, or local bodies cannot directly invoke this provision.
• A legal right must be in question — the claim must be justiciable, not merely political or aspirational.
• The cause of action must have arisen from a law or legal relation governed by the Constitution, and not merely from a factual or policy context.

1.2.2 What Article 131 Does NOT Cover

• Disputes where the Union is acting in a private or commercial capacity (e.g., as a contractor or employer) — these are treated as ordinary civil disputes.
• Disputes between States and statutory corporations or autonomous bodies, even if government-owned.
• Disputes raising purely political questions — such as the constitutionality of a policy decision not backed by law.
• Matters falling under Article 262 (inter-State river water disputes), which are assigned to a tribunal and excluded from the Supreme Court’s jurisdiction.

1.2.3 Leading Cases under Article 131

1.3 Article 32 as Original Jurisdiction

Alongside Article 131, Article 32 confers on the Supreme Court a form of original jurisdiction specifically for the enforcement of Fundamental Rights.

Any person may directly petition the Supreme Court — without first exhausting other remedies — if a Fundamental Right guaranteed under Part III of the Constitution has been violated.

Dr B.R. Ambedkar described this as the ‘heart and soul’ of the Constitution, and the Supreme Court’s obligation to entertain such petitions is itself a Fundamental Right.

Distinction between Article 131 and Article 32 Original Jurisdiction

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CHAPTER II: APPELLATE JURISDICTION OF THE SUPREME COURT

2.1 Overview and Structure

The appellate jurisdiction of the Supreme Court constitutes the principal volume of its work. It is the power to correct, confirm, or reverse decisions of lower courts and tribunals.

The Constitution distributes appellate jurisdiction across four main streams: constitutional appeals (Article 132), civil appeals (Article 133), criminal appeals (Article 134), and the residuary special leave jurisdiction (Article 136).

2.2 Article 132 — Constitutional Appeals

Article 132 provides for appeals to the Supreme Court from any judgment, decree, or final order of a High Court, whether in civil, criminal, or other proceedings, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution.

WHAT IS A ‘SUBSTANTIAL QUESTION OF LAW’?

A ‘substantial question of law’ is one which is not settled, or which is open to argument, or which is of general public importance — as opposed to a question the answer to which is well-settled.

The High Court, in certifying such a question, is not expressing a view on the merits but affirming that the question is sufficiently important and open to warrant the Supreme Court’s attention.

See: Sir Chunilal V. Mehta & Sons v. Century Spinning [(1962) Supp 3 SCR 549] — the leading case on the meaning of ‘substantial question of law’.

2.3 Article 133 — Civil Appellate Jurisdiction

Civil appeals to the Supreme Court from High Court judgments lie where the High Court certifies:

(a) that the case involves a substantial question of law of general importance; and
(b) that in its opinion the question needs to be decided by the Supreme Court.

The Constitution (Thirtieth Amendment) Act, 1972 abolished the earlier monetary threshold of Rs. 20,000, replacing it with this dual-limb certificate requirement. Both conditions must be satisfied.

2.4 Article 134 — Criminal Appellate Jurisdiction

The criminal appellate jurisdiction of the Supreme Court arises automatically — without any certificate — in three categories of cases:

1. The High Court, on appeal, has reversed an order of acquittal of an accused person and sentenced that person to death.

2. The High Court has withdrawn a case from a subordinate court for trial by itself and, on such trial, convicted the accused and sentenced that person to death.

3. The High Court certifies under Article 134A that the case is fit for appeal to the Supreme Court.

Additionally, Article 134(2) empowers Parliament to extend the criminal appellate jurisdiction of the Supreme Court to include other cases by legislation.

ARTICLE 134A — THE CERTIFICATE MECHANISM

Article 134A was inserted to streamline the procedure for obtaining certificates under Articles 132 and 133. Any party intending to seek such a certificate must apply to the High Court orally — at the time of pronouncement of judgment or within sixty days thereafter.

The High Court then determines whether to grant the certificate. This provision prevents parties from approaching the Supreme Court directly for a certificate, ensuring the High Court has a first opportunity to assess the suitability of the case for Supreme Court scrutiny.

2.5 Article 136 — Special Leave to Appeal

Article 136 is the most significant, most widely invoked, and most debated provision in the appellate architecture of the Supreme Court. It is a residuary, plenary, and entirely discretionary power to 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, with the sole exception of courts or tribunals constituted by or under any law relating to the Armed Forces.

2.5.1 Nature and Scope

• Article 136 is not a right of appeal — it is a discretionary power of the Court. Grant of leave is never a matter of right, irrespective of how grave the error alleged.
• It operates as a safety net — reaching cases that fall through all other appellate channels, and correcting manifest injustice even where no other jurisdiction exists.
• It covers not just High Courts but all courts and tribunals — including specialised tribunals like NCLAT, NGT, SAT, CAT, and consumer forums.
• Both the Union and States may file SLPs, as may private parties and even statutory bodies.

2.5.2 Principles Governing Grant of Special Leave

The Supreme Court has, over decades, evolved a principled framework for deciding whether to grant special leave:

2.5.3 SLP — From Filing to Appeal

The procedural journey of a Special Leave Petition is important for AOR practice:

1. SLP is filed within the limitation period prescribed by the Supreme Court Rules, 2013 (generally 90 days from the impugned order for civil matters, 60 days for criminal matters, subject to condonation).

2. The SLP is listed for a preliminary hearing (admission). The Court may: (a) dismiss in limine (at threshold), (b) issue notice and call for a counter, (c) admit and convert the SLP into an appeal.

3. If leave is granted, the SLP stands converted into a Civil Appeal or Criminal Appeal, as the case may be.

4. If dismissed at the threshold without issuing notice, the impugned order stands. The merger doctrine does not apply to threshold dismissals.

5. If the SLP is dismissed after hearing on the merits (even briefly), there may be a merger. This distinction is frequently examined.

AOR EXAMINATION — KEY POINTS

• Article 136 covers ALL courts and tribunals except Armed Forces courts martial. Memorise this exception.
• Distinguish: SLP dismissed at threshold (no merger) vs. SLP dismissed after hearing (possible merger of impugned order into SC order).
• The limitation period under the SC Rules for SLPs differs between civil and criminal matters — know the exact periods.
• Article 136 cannot be used as a substitute for an appeal — the petitioner must show that extraordinary circumstances justify the exercise of discretionary jurisdiction.

CHAPTER III: ADVISORY JURISDICTION OF THE SUPREME COURT

3.1 Constitutional Provision — Article 143

Article 143 of the Constitution confers upon the President of India the power to seek the opinion of the Supreme Court on questions of law or fact that appear to the President to be of such public importance that it is expedient to obtain the Court’s opinion. This is the advisory jurisdiction — distinct from all other forms of jurisdiction in that it does not result in a binding judgment or decree but in an opinion.

3.2 Procedure

• A reference under Article 143 is heard by a Constitution Bench of at least five Judges of the Supreme Court.
• The Court may hold that the question is not fit to be answered if it is vague, abstract, hypothetical, or purely political.
• Arguments are invited from the Attorney General, Solicitor General, and other interested parties, including Bar Associations and States.
• The opinion is delivered in open court, and dissents are possible and have been recorded in past references.

3.3 Important Presidential References

3.4 Distinction from Other Jurisdictions

The advisory jurisdiction differs fundamentally from the Court’s adjudicatory jurisdictions:

• No lis (legal dispute between parties): There are no adversarial parties in a 143 reference; the President alone initiates.
• No res judicata: An advisory opinion does not create res judicata. The same question can be litigated subsequently.
• Non-binding (under 143(1)): The President is not bound to follow the opinion. However, in practice, it shapes executive action.
• No contempt: Non-compliance with an advisory opinion (under 143(1)) does not constitute contempt of court.

CHAPTER IV: WRIT JURISDICTION AND JUDICIAL REVIEW

4.1 Constitutional Basis

The writ jurisdiction of the Supreme Court flows from Article 32 of the Constitution, which empowers the Court to issue directions, orders, or writs — including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari — for the enforcement of Fundamental Rights.

The writ jurisdiction of the High Courts flows from Article 226, which is broader: the High Court may issue writs not only for enforcement of Fundamental Rights but for any other purpose — i.e., for enforcement of any legal right, whether constitutional or statutory.

4.2 The Five Writs — Detailed Analysis

4.2.1 Habeas Corpus — ‘You Shall Have the Body’

Habeas corpus is the great writ of liberty. It is a direction by the court to the authority detaining a person to produce the body of the detained person before the court and to justify the legality of the detention.

Key principles:

• Available against any kind of detention — whether by the state, a private individual, or an institution.
• The writ is prospective — it deals with present or continuing detention, not past detention.
• The burden of justifying the detention lies on the authority detaining.
• During a national emergency, habeas corpus may be restricted under Article 359, but post the 44th Amendment (1978), Articles 20 and 21 cannot be suspended even during an emergency.

Leading Cases:

• ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 — The majority held that during the Emergency, the right to move for habeas corpus was suspended. Subsequently overruled in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1].
• Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 — Expanded use of habeas corpus to address systemic violations, establishing the right to speedy trial as part of Article 21.

4.2.2 Mandamus — ‘We Command’

Mandamus is a direction issued by the court to a public authority commanding it to perform a public or statutory duty that it has refused or neglected to perform.

Essential requirements:

• There must be a legal right in the petitioner to demand performance.
• There must be a corresponding public or legal duty on the authority.
• The duty must be of a public nature — not private contractual obligations.
• The petitioner must have made a demand and been refused (may be waived in urgent cases).

Leading Case: Lekhraj v. State of Bihar AIR 1967 SC 1515 — Established that mandamus lies where a public authority refuses to exercise a statutory power it is obliged to exercise.

4.2.3 Prohibition — ‘To Forbid’

A writ of prohibition is issued to an inferior court, tribunal, or quasi-judicial body, commanding it to cease the exercise of jurisdiction that it does not possess.

• Lies against judicial and quasi-judicial bodies — not against purely administrative authorities.
• Must be sought before the inferior tribunal delivers its final order.
• Does not lie if the error is within jurisdiction — only jurisdictional excess warrants prohibition.

4.2.4 Certiorari — ‘To Be Informed’

Certiorari is a writ issued to an inferior court or tribunal to quash its decision on the grounds of:
(i) lack of or excess of jurisdiction;
(ii) violation of natural justice;
(iii) error of law apparent on the face of the record; or
(iv) fraud or collusion.

Leading Cases:

• T.C. Basappa v. T. Nagappa AIR 1954 SC 440 — Foundational case establishing that certiorari lies to quash orders made in excess of jurisdiction or in violation of natural justice.
• Hari Vishnu Kamath v. Syed Ahmad Ishaque AIR 1955 SC 233 — Clarified that error must be of law, not merely of fact, and must be so manifest that no elaborate argument is required.

4.2.5 Quo Warranto — ‘By What Authority’

Quo warranto is issued to question the legality of a person’s claim to a public office.

• Available only in respect of offices of a public nature, created by statute or the Constitution.
• May be sought by any person — unlike other writs, not limited to a person whose personal rights are affected.
• It is discretionary — the Court may refuse it if the person’s term has already expired or if exercise would be futile.

4.3 Scope of Judicial Review

Judicial review is the power of the Supreme Court and High Courts to examine the constitutional validity of legislative and executive action and to strike it down if found to be in violation of the Constitution.

The Supreme Court in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] held that judicial review is part of the basic structure of the Constitution — it cannot be abrogated even by a constitutional amendment.

4.3.1 Grounds of Judicial Review

4.3.2 Judicial Review vs. Appeal — The Critical Distinction

4.3.3 Doctrine of Basic Structure and Judicial Review

The doctrine of basic structure, propounded in Kesavananda Bharati, holds that Parliament’s power to amend the Constitution under Article 368 does not extend to amending or destroying the basic structure or essential features of the Constitution.

Judicial review itself is a part of this basic structure, as are the supremacy of the Constitution, separation of powers, federal structure, and independence of the judiciary.

 AOR EXAMINATION — KEY POINTS

• Article 32 vs. Article 226: Article 32 is limited to Fundamental Rights; Article 226 covers ‘any other purpose’ (any legal right). Article 226 is wider in scope but Article 32 is a Fundamental Right itself.
• Judicial review is part of the basic structure — Parliament cannot abrogate it by constitutional amendment.
• Proportionality is now a ground of judicial review in India — know the four-stage test from Modern Dental College and Anuradha Bhasin.
• The distinction between ‘review of merits’ (appeal) and ‘review of legality’ (judicial review) is a perennial examination theme.

CHAPTER V: REVIEW JURISDICTION AND CURATIVE PETITIONS

5.1 Review Jurisdiction — Article 137

Article 137 provides that, subject to the provisions of any law made by Parliament and the rules made under Article 145, the Supreme Court has the power to review any judgment pronounced or order made by it. This is the constitutional basis of the Supreme Court’s self-correcting mechanism — the recognition that the Court, though the highest, is not infallible.

5.2 Nature and Scope of Review

Review under Article 137 is not an appeal disguised as a petition. The scope of review is significantly narrower than the scope of an appeal. The Supreme Court Rules, 2013 (Order XLVII) govern the procedure for review petitions.

5.2.1 Grounds for Review

5.3 Procedure for Review Petitions

• A review petition must be filed within thirty days of the date of the judgment or order.
• In civil matters, review petitions are ordinarily heard by circulation — without an oral hearing.
• In criminal matters, review petitions are heard by circulation, unless an oral hearing is specially ordered. After Mohd. Arif v. Registrar, Supreme Court [(2014) 9 SCC 737], open-court hearings are mandatory in death penalty review petitions.
• The review bench is the same bench that decided the original matter.

5.4 Curative Petitions — The Judge-Made Last Resort

The curative petition is not a creation of the Constitution but a judge-made remedy crafted by the Supreme Court itself to correct a grave injustice after even the review petition has been dismissed. The remedy was crystallised in Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388].

5.4.1 Grounds for a Curative Petition

5.4.2 Procedure for Curative Petitions

1. The curative petition must be accompanied by a certification by a Senior Advocate that the petition satisfies the conditions laid down in Rupa Ashok Hurra.

2. The petition is first circulated to a bench of the three senior-most Judges of the Supreme Court and also to the Judges who delivered the impugned judgment (if available).

3. The petition is entertained only if a majority of that bench concludes that the matter requires hearing.

4. If admitted, the curative petition is heard in open court by the same bench.

5. If found to be vexatious, the Court may impose exemplary costs.

5.5 Comparative Analysis — Review, Curative, and Appeal

 AOR EXAMINATION — KEY POINTS

• The curative petition is NOT a constitutional remedy — it is judge-made (Rupa Ashok Hurra, 2002). This distinction is tested repeatedly.
• Review under Article 137 is distinct from review under Article 226 (High Court review).
• Death penalty review: After Mohd. Arif (2014), open-court hearing is mandatory.
• After dismissal of a curative petition, no further remedy lies before the Supreme Court — only Presidential pardon (Article 72) or Gubernatorial pardon (Article 161) remains in criminal matters.

CHAPTER VI: MASTER COMPARATIVE CHART — ALL JURISDICTIONS

The following chart consolidates all five jurisdictions of the Supreme Court for rapid revision:

FAQ

1. What are the main jurisdictions of the Supreme Court relevant for the AOR Examination?

The Supreme Court exercises five key jurisdictions:

• Original (Article 131 & 32)
• Appellate (Articles 132–135)
• Special Leave (Article 136)
• Advisory (Article 143)
• Review & Curative (Article 137 + judicial innovation)

2. What is meant by original jurisdiction of the Supreme Court?

Original jurisdiction refers to the Court’s power to hear a case at the first instance, without prior adjudication by lower courts.

3. What is the scope of Article 131?

Article 131 deals with exclusive federal disputes between:

• Union and State(s)
• State vs State

The dispute must involve a legal right, not a political issue.

4. Why is Article 131 jurisdiction called “exclusive”?

Because no other court or tribunal can entertain disputes that fall within its scope.

5. Can private parties invoke Article 131?

No. Only the Union and State Governments can invoke Article 131.

6. What types of disputes are excluded from Article 131?

• Purely political disputes
• Commercial disputes involving the government
• Matters under Article 262 (river water disputes)
• Disputes involving private entities

7. How is Article 32 different from Article 131?

8. What is the appellate jurisdiction of the Supreme Court?

It is the power to review decisions of High Courts and correct errors in law or fact.

9. What are the categories of appellate jurisdiction?

• Article 132: Constitutional matters
• Article 133: Civil matters
• Article 134: Criminal matters

10. What is a “substantial question of law”?

A question that is:

• Not settled by precedent
• Of general public importance
• Requires authoritative interpretation

11. What is the role of Article 134A?

It provides the procedure for obtaining a certificate from the High Court for appeal to the Supreme Court.

12. What is Article 136 (Special Leave Petition)?

It is a discretionary power of the Supreme Court to grant leave to appeal from any court or tribunal (except armed forces courts).

13. Is filing an SLP a matter of right?

No. It is an extraordinary discretionary remedy, granted only in cases of grave injustice or important legal issues.

14. What is the significance of Article 136 in practice?

It acts as a residual safety net, ensuring justice even where no appeal lies.

15. What is the difference between SLP dismissal and merger doctrine?

• Dismissal at threshold: No merger
• Dismissal after hearing: Possible merger of lower court judgment

16. What is advisory jurisdiction under Article 143?

The President may seek the Supreme Court’s opinion on questions of public importance.

17. Is the advisory opinion binding?

• Article 143(1): Not binding
• Article 143(2): Binding

18. Can the Supreme Court refuse a Presidential reference?

Yes, under Article 143(1), if the question is hypothetical or political.

19. What is writ jurisdiction under Article 32?

The Supreme Court can issue writs to enforce Fundamental Rights.

20. What are the five writs?

• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari
• Quo Warranto

21. How is Article 226 different from Article 32?

• Article 32: Only Fundamental Rights
• Article 226: Fundamental + legal rights (broader scope)

22. What is judicial review?

Judicial review is the power of courts to examine the validity of laws and executive actions.

23. Is judicial review part of the basic structure?

Yes. It cannot be removed even by a constitutional amendment.

24. What are the grounds of judicial review?

• Unconstitutionality
• Legislative incompetence
• Arbitrariness (Article 14)
• Proportionality
• Procedural impropriety

25. What is the difference between judicial review and appeal?

26. What is review jurisdiction under Article 137?

The Supreme Court can review its own judgment to correct errors.

27. What are the grounds for review?

• Error apparent on record
• Discovery of new evidence
• Other sufficient reason

28. What is the limitation period for review petitions?

Generally, 30 days from the date of judgment.

29. What is a curative petition?

A judge-made remedy (from the Rupa Ashok Hurra case) to cure gross miscarriage of justice after dismissal of review.

30. What are the grounds for a curative petition?

• Violation of natural justice (bias/no hearing)
• Abuse of court process (fraud, suppression)

31. What is required to file a curative petition?

• Certification by a Senior Advocate
• Circulation to the senior-most judges
• Majority approval before hearing

32. Can a curative petition be used as a second appeal?

No. It is an extremely limited, last-resort remedy.

33. What happens after dismissal of a curative petition?

The judgment attains absolute finality. No further judicial remedy exists.

34. What is the key difference between a review and a curative petition?

35. What are the most important AOR exam focus areas from this topic?

• Article 131 vs Article 32
• Article 136 (SLP scope & limits)
• Judicial review vs appeal
• Review vs curative petition
• Article 143 advisory jurisdiction
• Doctrine of merger

36. Why is this topic crucial for AOR Examination?

Because it defines the complete functional framework of Supreme Court practice, both procedurally and substantively.

Disclaimer: *This article is prepared for academic and examination purposes in connection with the Advocate-on-Record Examination conducted by the Supreme Court of India.

Constitutional text is drawn from the Constitution of India as amended. Legal positions reflect settled judicial interpretation as of the date of preparation.

Candidates are advised to consult original judgments, updated bare acts, and the Supreme Court Rules, 2013, for complete and current information.*

✧ Vikas Pandey · Advocate ✧ Supreme Court of India · Lawyer