Appeals to the Supreme Court

In one line

An appeal to the Supreme Court from a civil proceeding lies where the High Court certifies that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.

Why the Code says so little

The right of appeal to the Supreme Court is constitutional, not statutory. Chapter IV of Part V of the Constitution creates it, and Article 136 gives the Supreme Court its own discretionary power to grant special leave from any judgment of any court or tribunal. The Code therefore does not create the right; it regulates the steps a High Court and the parties take when a certified appeal is sought.

That is why this chapter is short, and why an answer should begin by saying where the right actually comes from.

The certificate: section 109

Section 109: subject to the provisions in Chapter IV of Part V of the Constitution and to such rules as may from time to time be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies:

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

Both limbs are required, and the difference between them is worth drawing out, because candidates give only the first.

Limb (i) is about the question: it must be a substantial question of law, and it must be of general importance, not merely important to these parties. That is a higher bar than section 100, where a substantial question of law suffices for a second appeal without any requirement of general importance. See [Appeals from Appellate Decrees].

Limb (ii) is about necessity: even a question of general importance does not carry a certificate unless the High Court thinks it needs to be decided by the Supreme Court, for instance because the authorities conflict or the point is unsettled.

Section 112 saves the position under the Constitution and preserves the Supreme Court's powers, providing that nothing in the Code shall be deemed to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or to interfere with any rules made by the Supreme Court.

So the Code's certificate route sits alongside special leave under Article 136, which needs no certificate and is entirely in the Supreme Court's discretion. A party refused a certificate is not shut out; he may petition for special leave.