Original jurisdiction of the Supreme Court

Article 109, Draft Constitution 1948

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute-

(a) Between the Government of India and one or more States, or

(b) Between the Government of India and any State or States on one side and one or more other States on the other; or

(c) Between two or more States, if in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to-

(i) A dispute to which a State for the time being specified in Part III of the First Schedule is a party, if the dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which was entered into or executed before the date of commencement of this Constitution and has, or has been, continued in operation after that date;

(ii) A dispute to which any State is a party, if the dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which provides that the said jurisdiction shall not extend to such a dispute.

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States,

if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

⁠Provided that the said jurisdiction shall not extend to—

(i) a dispute to which a State specified in Part B of the First Schedule is a party, if the dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution and has, or has been, continued in operation after such commencement;

(ii) a dispute to which any State is a party, it the dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which provides that the said jurisdiction shall not extend to such a dispute.

Draft Article 109 (Article 131) was debated on 3 June 1949 and 14 October 1949. It delineated the scope of original jurisdiction of the Supreme Court.

A member of the Drafting Committee proposed to delete clause (i) of the proviso. He argued for leaving any specific references to Part III of the Constitution out of the provision.

There was an opposition to this provision principally. A member believed that in case of a dispute between states, the adjudicator should be the Government of India – not the Supreme Court. According to him, the states were subordinate to the Centre.

The Assembly accepted the amendments of the Drafting Committee and adopted the Draft Article on 3 June 1949. The Draft Article was reopened for discussion on 14 October 1949 where both the clauses of the proviso were retained.