Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court

Article 135, Constitution of India 1950

Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.

Draft Article 112B (Article 135) was not initially included in the Draft Constitution. The Chairman of the Drafting Committee proposed the insertion of the following provisions:

‘Jurisdiction and powers of His Majesty in Council under existing law in certain cases to be exercisable by the Supreme Court.

112 B. Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to matters other than those referred to in the foregoing provisions of this Chapter in relation to which jurisdiction and powers were exercisable by His Majesty in Council immediately before the commencement of this Constitution under any existing law‘.

The insertion of Draft Article 112B was debated in the Assembly on 15th September 1949. It conferred all the powers and jurisdiction previously exercised by the Privy Council on the Supreme Court. The Chairman of the Drafting Committee stated that the provision was necessary to ensure that the Supreme Court could exercise jurisdiction over all proceedings, including those relating to income tax and property acquisition.

One member proposed that the article be amended to expand the power of the court to anything under jurisdiction by law ‘or practice’. He argued that the Privy Council may have been exercising certain powers which had not been codified, and therefore by including the phrase ‘or practice’, it included even non-codified customs within the jurisdiction of the Supreme Court. The Chairman of the Drafting Committee responded that the term was ordinarily taken to include matters of procedure, it would be improper to make the amendment since Draft Article 112B dealt only with the substantive matter of jurisdiction.

Another member proposed that the Supreme Court’s jurisdiction should be extended to allow it to hear appeals against death sentences passed by court martials, citing certain procedural issues which impacted the ability of the accused to have a fair and impartial trial. The Chairman of the Drafting Committee responded that there was no impediment to Parliament making an appropriate provision in the Army Act conferring such a power on the Supreme Court, and therefore the amendment was unnecessary.

All amendments were withdrawn by the proposing members. Draft Article 112B was adopted by the Assembly on 15th September 1949.