Article 138

Article 138 of the Constitution of India provides the constitutional mechanism for expanding the jurisdiction of the Supreme Court beyond that explicitly conferred upon it by the Constitution. This provision reflects the framers’ intent to make the Supreme Court a dynamic and adaptable institution, capable of addressing the changing legal and administrative needs of the nation. It empowers Parliament and the States, acting in cooperation, to extend the Court’s jurisdiction through legislation or special agreements.

Constitutional Text and Purpose

The Article reads as follows:

(1) The Parliament may by law confer on the Supreme Court such further jurisdiction and powers with respect to any of the matters in the Union List as it thinks fit.
(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.

This dual mechanism of expansion ensures that the Supreme Court’s powers remain flexible yet constitutionally controlled — adjustable through democratic processes while maintaining the separation of powers.

Background and Historical Context

At the time of the Constitution’s drafting, the framers recognised that the Supreme Court’s jurisdiction, though comprehensive, might require periodic enlargement to meet new administrative, legislative, or federal challenges.
The Federal Court of India (1937–1950), the Supreme Court’s predecessor, had a more limited jurisdiction confined largely to constitutional and intergovernmental disputes. Article 138 was introduced to ensure that the newly formed Supreme Court could evolve in scope and authority as the country’s governance expanded under a complex federal structure.
This Article thus reflects the vision of a living Constitution, capable of adapting to India’s evolving socio-political and legal landscape.

Clause (1): Enlargement by Parliament

Under Clause (1), Parliament is empowered to extend the jurisdiction and powers of the Supreme Court by enacting appropriate laws relating to matters included in the Union List.
The Union List, enumerated in the Seventh Schedule, comprises subjects over which the Central Government has exclusive legislative authority — such as defence, foreign affairs, banking, atomic energy, inter-state trade, and telecommunications.
This means that Parliament may authorise the Supreme Court to:

• Exercise jurisdiction in new types of cases arising out of Union List subjects;
• Review or hear appeals from specialised tribunals created under parliamentary laws;
• Adjudicate complex federal or administrative issues connected to central legislation.

Illustrative Example:The Special Courts Act, 1979, enacted to expedite cases involving high-level corruption, is one such instance where Parliament conferred additional jurisdiction upon the Supreme Court.
This provision ensures that the judiciary evolves alongside the administrative apparatus of the State, maintaining harmony between governance and justice.

Clause (2): Enlargement through Special Agreements

Clause (2) of Article 138 introduces an additional mechanism by which the Supreme Court’s jurisdiction can be expanded — through special agreements between the Union and one or more States, supported by a law passed by Parliament.
This clause embodies the principle of cooperative federalism, allowing the Centre and States to collaborate in entrusting the Supreme Court with jurisdiction over specific legal issues or disputes that may not otherwise fall within its constitutional competence.
For example, if a State Government and the Central Government enter into an agreement on a legal matter requiring national-level adjudication, Parliament can enact a law to authorise the Supreme Court to exercise jurisdiction over such matters.
This provision enables flexibility and coordination in the judicial process, ensuring that federal disputes or cross-jurisdictional matters can be effectively resolved by the highest court.

Key Features of Article 138

• Flexibility of Jurisdiction: Allows the Supreme Court’s authority to evolve as new legal and administrative needs emerge.
• Legislative Oversight: Ensures that any extension of jurisdiction is accomplished through a democratic and transparent process, requiring parliamentary approval.
• Cooperative Federalism: Encourages collaboration between the Union and the States in conferring additional judicial powers.
• Judicial Adaptability: Reflects the framers’ foresight that the judiciary must adapt to technological, economic, and social transformations over time.

Union List and Its Importance

The Union List is the foundation of national governance, enumerating 100 subjects on which only Parliament can legislate. By empowering Parliament to extend the Supreme Court’s jurisdiction over these matters, Article 138 ensures that the apex court remains the ultimate arbiter in cases affecting the sovereignty, integrity, and national interests of India.
This jurisdictional flexibility reinforces the Supreme Court’s role as a unifying judicial authority in a diverse federal system.

Role of Parliamentary Law

Any enlargement of the Supreme Court’s jurisdiction under Article 138 must be effected by a law enacted by Parliament. This requirement ensures democratic legitimacy and prevents arbitrary expansion of judicial powers.
Parliament’s legislative intervention under this provision maintains the constitutional balance between the judiciary and the legislature. It also ensures that the Supreme Court’s additional jurisdiction is precisely defined, avoiding overlaps with the functions of other courts or tribunals.

Related Constitutional Articles

• Article 32: Empowers the Supreme Court to issue writs for the enforcement of fundamental rights.
• Article 131: Defines the Court’s original jurisdiction in federal disputes.
• Article 136: Grants the Court discretionary power to grant special leave to appeal.
• Article 142: Authorises the Supreme Court to issue orders necessary to do complete justice in any matter.

While these Articles delineate the Supreme Court’s existing powers, Article 138 acts as an enabling clause, providing for their future expansion through legislative action.

Judicial Interpretation and Practical Application

Although no landmark cases directly interpret Article 138, the Supreme Court has on several occasions discussed its relevance in the context of jurisdictional expansion. The Court has emphasised that:

• Any enlargement under Article 138 must be clearly authorised by parliamentary legislation.
• The provision preserves the federal balance by ensuring mutual consent between the Union and the States when jurisdiction is conferred through special agreements.
• The jurisdictional expansion must be consistent with the basic structure of the Constitution, including judicial independence and separation of powers.

In practice, Article 138 has been used to confer special or additional appellate powers upon the Supreme Court in matters of public importance, commercial regulation, and inter-state disputes.

Significance of Article 138

Article 138 holds enduring significance in the constitutional framework for several reasons:

• It acts as a constitutional safety valve, allowing the judiciary to adapt to new challenges without requiring frequent constitutional amendments.
• It strengthens the Supreme Court’s role as the apex judicial authority, enabling it to address emerging areas of law.
• It promotes harmonious Centre–State relations by facilitating jurisdictional cooperation.
• It ensures that the judiciary keeps pace with national development, particularly in fields such as economic regulation, environmental law, and technology.

Contemporary Relevance

In modern governance, as India faces increasingly complex legal issues—ranging from cyber law and data protection to environmental governance and intergovernmental disputes—Article 138 serves as a constitutional instrument for judicial adaptability. It allows Parliament to empower the Supreme Court to adjudicate new domains of law that require centralised interpretation and oversight.