Article 139-A of the Constitution of India, 1950: An Overview

Profile of the author: Sakshi Srivastav is a law student pursuing B.A.LL.B (Hons) from Rajiv Gandhi National University of Law, Punjab.

Introduction

Unlike other federal nations that have a dual system of court, India follows a unified judicial system. Our Constitution lays down an integrated and hierarchical structure for this third organ of the government. Under this structure, the Supreme Court is at the apex followed by High Courts. High Courts are then followed by District Courts and other subordinate ones. A High Court is not a court subordinate to the Supreme Court [1] but it is placed below in the system of hierarchy because of some superior constitutional powers bestowed upon the latter. Transfer of certain cases from a High Court, a power granted to the Supreme Court under Article 139-A of the Constitution [2], is one such provision. Article 139-A was originally not a part of the Constitution and was inserted via the Constitution (Forty- Second Amendment) Act, 1976.

Under Article 139-A, a certain case pending before a High Court may be withdrawn and transferred to-

1. The Supreme Court
2. Any other High Court

Transfer of cases to the Supreme Court

According to Clause (1) of Article 139-A, the Supreme Court can withdraw and transfer a case/cases from a High Court/Courts to itself if it finds that same or substantially the same question of law is being addressed in matters pending before it and one or more High Courts or before two or more High Courts. This is primarily done to promote quick disposal of cases [3] and to avoid difference of opinion on the same question of law [4].

These cases are, however, not transferred to the Supreme Court in totality. The Supreme Court only decides upon the common question of law and the case is returned to the respective High Court. The proviso attached to clause (1) provides that, after having deliberated and decided upon the similar question of law, the Supreme Court would have to return such case to the High court from where it was withdrawn. [5] The High Court may then decide the issues of the case, taking into consideration the law laid down by the Supreme Court.

However, in International Finance Corporation V Bihar Industrial Development Corporation[6] it was held that all the proceedings of a case will be transferred to the Supreme Court if an issue being decided between the parties in a High Court is also the subject matter of a case between the same parties in the Supreme Court.

Under Article 228 of the Constitution, which is identical with clause (1) of Article 139-A, similar power has been given to the High Court empowering it to transfer cases from subordinate courts to itself. [7]

Ground for withdrawal

As mentioned before, Article 139-A has been inserted in the Constitution by the 42nd Constitution Amendment Act. Later in 1978, by the Constitution (Forty-Fourth Amendment) Act, clause (1) of the article was substituted.

Prior to this substitution, cases were withdrawn from High Courts only if an application was moved by the Attorney- General of India requesting the same on the ground that the common question of law was a “substantial question of general importance” and the Supreme Court was satisfied with such application.

With the 1978 amendment, besides the Attorney-General, a transfer application could even be made by a party to any such case. In addition to this, the Supreme Court can withdraw a case pending before any High Court on its own motion too. The ground for withdrawal has, however, remained unchanged.

Transfer of cases to another High Court

By virtue of Article 139-A, not only does the Constitution empower the Supreme Court to transfer the High Court cases to itself, but it also authorizes the Apex Court to transfer cases from one High Court to another. Clause (2) of Article 139-A bestows upon the Supreme Court the power to transfer any case, appeal, or other proceedings pending before a High Court to another if it is deemed expedient to do so for meting out justice. [8]

If a petitioner has a justifiable fear that he may not get justice from a respective High Court, the Supreme Court, if satisfied, may transfer the case to another High Court. Apart from petitions on the transfer of cases, suo motu action can also be taken by the Supreme Court to pass an order for transfer. [9]

In UOI v Shiromani Gurudwara Prabandhak Committee [10], on a petition filed by the Government of India, the Supreme Court transferred a suit for damages, filed by the agents of a Gurudwara that suffered property loss as a result of Operation Blue Star, from Punjab & Haryana High Court to the High Court of Delhi. This order for transfer was passed, taking into consideration the extraordinary repercussions of Operation Blue Star in Punjab.

Conclusion

Through this article, it becomes clear to us that Article 139-A of the Constitution enables the Supreme Court to withdraw and transfer cases from a High Court to either itself or another High Court. Article 139-A is however not the only provision under which the Supreme Court can exercise its power for the aforesaid purpose. A case from a lower court can also be withdrawn to the Supreme Court under Articles 136 and 142 (1) of the Constitution [11] which talk about Special Leave Petition (SLP) and enforcement of the decrees and orders of the Supreme Court, respectively. In Union Carbide Corporation v UOI [12], it was made clear that the power of the Supreme Court under Article 139-A is not exhaustive in nature, and thus the Court’s wide power under other provisions are not whittled down by it.

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FAQs

Q. What are some prominent features of the 42nd Amendment Act?

Ans. The act also called The Constitution Act, 1976 is termed as one of the most controversial acts in the history of amendments to the Indian Constitution. It amended/ introduced various provisions given below:

• Attempted to reduce the power of the Supreme Court and High Courts.
• Laid down Fundamental Duties for citizens.
• Terms like Socialist, Secular, and Integrity added to the Preamble.

References

[1] Tirupati Balaji Developers (P) Ltd v. State of Bihar, A.I.R. 2004 S.C. 2351.

[2] INDIA CONST. art. 139-A.

[3] M P JAIN, INDIAN CONSTITUTIONAL LAW 294 (Lexis Nexis, 8th ed. 2018).

[4] PROF. NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA 634 (8th ed. 2011).

[5] INDIA CONST. art. 139-A, cl. 1.

[6] International Finance Corporation V Bihar Industrial Development Corporation, (2005) 10 S.C.C. 179.

[7] INDIA CONST. art. 228.

[8] INDIA CONST. art. 139-A, cl. 2.

[9] Kartar Singh v State of Punjab, (1994) 3 S.C.C. 569.

[10] UOI v Shiromani Gurudwara Prabandhak Committee, A.I.R. 1986 S.C. 1896.

[11] M P JAIN, INDIAN CONSTITUTIONAL LAW 294 (Lexis Nexis, 8th ed. 2018).

[12] Union Carbide Corporation v UOI, A.I.R. 1992 S.C. 248, 273.