Appeals to the Privy Council, 1861 to 1949

Section 15 of the Act of 1861 is also worth naming here, though it is not an appeal provision: the High Court's superintendence over all courts subject to its appellate jurisdiction meant that the corrective work in ordinary cases stayed in India, and only the questions worth the journey went further.

What the Privy Council did with Indian law

This is the part of the topic that examiners reward and textbooks skimp, so it is worth being concrete.

For most of this period there was no Indian court whose decisions bound the whole country. The Calcutta High Court did not bind Madras. The Federal Court did not exist until 1937, and when it came its jurisdiction was confined to constitutional questions. So the only tribunal whose decisions were authoritative everywhere in British India was the Judicial Committee, and section 212 of the Government of India Act 1935 said so expressly: the law declared by the Federal Court and by any judgment of the Privy Council was to be recognised as binding on all courts in British India.

The consequence is that between 1861 and 1949 the Judicial Committee settled, case by case, large parts of the Hindu law and Muslim law administered in India, in the areas where those laws were uncodified, and much of the general law besides. Where a code existed, as in contract from 1872, its work was interpretation; where none existed, as in joint family property, its decisions were the law.

Two criticisms of that body of work are standard and both are fair. The Committee was applying personal laws it knew only through translations, English textbooks and the arguments of English counsel, and it occasionally fixed as law a proposition that Indian scholarship afterwards questioned. And its decisions were slow and expensive to obtain, so the law was settled for those who could afford to settle it.

Two defences are equally fair. It supplied a uniformity no Indian institution could until 1937. And its distance from the parties, which is a defect in fact-finding, is an advantage in a jurisdiction where the courts below sat under the eye of the executive: the Judicial Committee was, whatever else, wholly beyond the reach of the Government of India.

What changed in 1937

The Government of India Act 1935 inserted a new court between the High Courts and London for one class of case.

Section 205: where a High Court certified that a case involved a substantial question of law as to the interpretation of the Act or an Order in Council under it, the appeal lay to the Federal Court, and where such a certificate was given no direct appeal lay to His Majesty in Council, with or without special leave.

Section 206: the Federal Legislature might by Act provide for appeals to the Federal Court in specified civil cases without a certificate. That power was used in 1947.

Section 207: appeals from a High Court in a Federated State on constitutional questions, by way of special case stated.

Section 208: an appeal lay from the Federal Court to His Majesty in Council: without leave from a judgment in its original jurisdiction on the interpretation of the Act or the extent of the Federation's authority under an Instrument of Accession, and in any other case by leave of the Federal Court or of His Majesty in Council.

So from 1937 the ladder had four rungs for a constitutional case, and three for everything else:

A worked example

A suit about a Hindu joint family in the Bombay Presidency in 1930, and the same suit in 1940.

1930. Tried in the district court; appealed to the High Court of Bombay on its appellate side; and, if the valuation conditions in the Letters Patent and the Code are met and, the decree being one of affirmance, a substantial question of law is involved, appealed to His Majesty in Council. If the conditions are not met, an application for special leave.

1940, with a constitutional point added. Suppose the suit turns on the validity of a Provincial Act. Under section 225 the High Court must transfer the case to itself. It decides, and under section 205(1) must consider of its own motion whether to certify. If it certifies, the appeal goes to the Federal Court, and no direct appeal to His Majesty in Council is then possible. From the Federal Court, an appeal to His Majesty in Council by leave under section 208(b).

What beginners get wrong

"Appeals to the Privy Council ended in 1949." The date in MU's label is 1949 and it is the middle of three steps. Civil appeals were moved to the Federal Court in 1948, the jurisdiction was abolished in 1949, and article 374 of the Constitution dealt with what was left in 1950. The next chapter separates them.

"Every case could go to the Privy Council." Only on satisfying the pecuniary and other conditions, or by special leave. In criminal matters special leave was granted sparingly, and only where there had been a grave miscarriage of justice or a serious departure from legal process.

"The Federal Court replaced the Privy Council in 1937." It was inserted below it for constitutional appeals. Section 208 kept an appeal from the Federal Court to His Majesty in Council.

"The Privy Council only interpreted statutes." In the uncodified areas of Hindu and Muslim law its decisions were the law, because no Indian court's decisions bound the whole country until 1937.

Limits and criticism

The period is the strongest and the weakest phase of the appeal at the same time, and an answer should say so in those terms.

Strongest, because the Judicial Committee did what no Indian institution could: it gave the whole of British India one body of authoritative decisions, binding by statute after 1935, wholly outside the control of the Government of India, and staffed by judges of the first rank.

Weakest, because by the 1930s the objection to it had become constitutional rather than practical. A country moving towards self-government cannot have its final court in the capital of another country, composed of that country's judges, advising that country's sovereign. Nothing about the quality of the work answers that objection, and it is the objection that ended the appeal.

The transition was managed, not abrupt, and the way it was managed is the subject of the next chapter.

Quick revision

• After 1862 appeals came from a single court in each Presidency, the High Court, and the volume rose sharply.
• Two routes: as of right, on a pecuniary test plus, for a decree of affirmance, a substantial question of law; and by special leave under the prerogative, granted sparingly in criminal cases.
• Between 1861 and 1949 the Judicial Committee was the only tribunal whose decisions bound the whole of British India, and section 212 of the Act of 1935 made its judgments binding by statute.
• 1937: the Federal Court interposed by s.205 for cases certified to involve a substantial question of law as to the interpretation of the Act, and then no direct appeal to His Majesty in Council; s.206 allowed the legislature to enlarge; s.207 covered Federated States; s.208 gave an appeal from the Federal Court to His Majesty in Council, without leave in the constitutional original-jurisdiction cases and otherwise by leave.
• The objection that ended it was constitutional, not practical.

Test yourself

1. Why did the number of Indian appeals rise so much after 1861? Because there was now one court in each Presidency to appeal from instead of two on different terms; because the High Courts had a professional bar that understood appellate practice; and because the ordinary property litigation of the mofussil now reached a court from which an appeal to London lay.

2. State the two routes of appeal from a High Court, and the extra requirement for a decree of affirmance. As of right, where the value of the subject matter and the nature of the decision satisfied the conditions in the Letters Patent and the Code of Civil Procedure; and by special leave of the Privy Council under the prerogative. Where the High Court's decree affirmed the decision below, the appeal as of right additionally required a substantial question of law.

3. What did section 205 of the Act of 1935 change about the route to London? It sent cases certified by a High Court to involve a substantial question of law as to the interpretation of the Act to the Federal Court, and provided that where such a certificate was given no direct appeal lay to His Majesty in Council, with or without special leave.

4. Why were the Privy Council's decisions so important to Indian law in this period? Because no Indian court's decisions bound the whole of British India before 1937, and the Federal Court's jurisdiction was confined to constitutional questions; so in the uncodified areas of Hindu and Muslim law and in much of the general law the Judicial Committee's decisions were the law, and section 212 of the Act of 1935 made them binding by statute.

5. What was the objection that finally ended the appeal? Not the quality of the work but the constitutional position: a country moving to self-government cannot have its final court sitting in another country, composed of that country's judges and advising that country's sovereign.