Appeals to the Supreme Court

Article 133(2) allows any party appealing to urge as a ground that a substantial question of law as to the interpretation of the Constitution has been wrongly decided. Article 133(3) provides that, unless Parliament otherwise provides, no appeal lies from the judgment of a single Judge of a High Court.

Notice what is absent: a money limit. The Privy Council appeal and the appeal under the Letters Patent had turned on the value of the subject matter, as Module II describes. The Constitution as originally enacted retained a pecuniary test in article 133; the Thirtieth Amendment replaced it with the test of general importance. That change is worth naming, because it converts the civil appeal from a rich litigant's right into a question about the law.

Article 134: the criminal appeal

An appeal lies from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court:

• has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
• has withdrawn for trial before itself any case from a subordinate court and in that trial convicted the accused and sentenced him to death; or
• certifies under article 134A that the case is a fit one for appeal to the Supreme Court.

And clause (2) allows Parliament by law to confer further powers on the Supreme Court to entertain criminal appeals, subject to conditions Parliament may specify.

The two automatic cases share a feature: a death sentence imposed in circumstances where the accused has not previously had two concurrent decisions against him. That is the principle, and it is a good example of a rule that looks arbitrary until the reason is stated.

Article 134A: the certificate

Article 134A, inserted by the Forty-fourth Amendment, provides that every High Court, passing or making a judgment, decree, final order or sentence referred to in article 132(1), 133(1) or 134(1), may on its own motion, and shall, if an oral application is made by or on behalf of the aggrieved party immediately after the passing of the judgment, determine as soon as may be after it is passed whether a certificate may be given.

It is a procedural article and it repays a sentence in an answer, because it is what makes the certificate route workable: the application is oral, made at once, and the High Court must decide promptly.

Article 136: special leave

Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

Clause (2) excepts any judgment, determination, sentence or order passed or made by a court or tribunal constituted by or under any law relating to the Armed Forces.

Article 136 is the widest appellate provision in the Constitution, and four features are worth having.

"Notwithstanding anything in this Chapter": it is not subject to articles 132 to 135. No certificate is needed and no High Court can refuse it.

"Any cause or matter" and "any court or tribunal": it reaches decisions of tribunals as well as courts, and interlocutory as well as final orders.

"In its discretion": nobody has a right to special leave. It is a power in the Court, not a remedy of the litigant, and the Court has said many times that it will be exercised sparingly and only where there is a question of general public importance or a manifest injustice.

And its ancestry is the Privy Council. Module II explains that the Crown had an inherent right, not controlled by Acts of Parliament, to admit appeals from subjects beyond the seas, and that this produced the appeal by special leave. Article 136 is that prerogative rewritten as a power of an Indian court and widened, because the Privy Council's practice in criminal matters was much narrower than the text of article 136.

Article 138 completes the picture: the Supreme Court shall have such further jurisdiction and powers with respect to any matter in the Union List as Parliament may by law confer, and with respect to any matter as the Government of India and the Government of a State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction. Compare section 206 of the Act of 1935, which is the provision under which the Federal Court's jurisdiction was enlarged in 1948.

A worked example

Four appeals, and the article that carries each.

A High Court decides that a State Act is not repugnant to a Union law. A substantial question of law as to the interpretation of the Constitution: article 132, on a certificate under article 134A.

A High Court decides a contract appeal involving an important and unsettled point about limitation, worth Rs 40,000. No money limit applies. If 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: article 133. If it refuses, the party may apply for special leave under article 136.

A High Court reverses an acquittal and sentences the accused to death. Article 134(1)(a), and no certificate is needed.

A tribunal makes an order that no statute allows an appeal from. Article 136, if the Supreme Court in its discretion grants special leave.

Distinctions worth having straight

What beginners get wrong

"Article 136 is an appeal." It is a power to grant leave to appeal, exercised in the Court's discretion. There is no right to be heard under it.

"A civil appeal to the Supreme Court needs a certain amount of money in issue." Not since the Thirtieth Amendment. The test in article 133 is a substantial question of law of general importance which needs to be decided by the Supreme Court.

"An appeal under article 134 always requires a certificate." Not in the two cases in article 134(1)(a) and (b), where a High Court has reversed an acquittal and sentenced the accused to death, or has withdrawn a case to itself, convicted and sentenced him to death.

"Article 136 covers every decision in India." It excepts courts and tribunals constituted under any law relating to the Armed Forces.

Limits and criticism

The standing criticism of this chapter of the Constitution is about article 136 and it is worth putting fairly.

The article was designed as an extraordinary power, the Privy Council's special leave in Indian hands. In practice it has become the ordinary route to the Supreme Court, because a litigant refused a certificate under articles 132 to 134 can always apply for special leave, and because tribunal decisions reach the Court by no other route. The consequence is a very large volume of applications, a Court that sits in small benches to cope with it, and a diminished capacity for the constitutional work that articles 131 and 132 contemplate.

Against that, the width of article 136 is also what makes the Supreme Court accessible: a litigant whose case is unusual, or whose forum is a tribunal, has somewhere to go. Whether the balance is right is a live question, and a student who states the tension has said what is worth saying.

Quick revision

• 132: any proceeding, on a certificate that it involves a substantial question of law as to the interpretation of the Constitution. Compare s.205 of the Act of 1935; article 147 extends the phrase to the Act of 1935 itself.
• 133: civil, on a certificate of a substantial question of law of general importance which needs to be decided by the Supreme Court. No money limit since the Thirtieth Amendment. No appeal from a single Judge unless Parliament provides.
• 134: criminal: an acquittal reversed with a death sentence; a case withdrawn to the High Court ending in conviction and a death sentence; or a certificate that it is a fit case. Parliament may confer more.
• 134A: the High Court may certify on its own motion and shall consider an oral application made immediately after judgment.
• 136: special leave, in the Court's discretion, from any court or tribunal in India, except those under Armed Forces law. Descended from the Privy Council's special leave.
• 138: Parliament may enlarge the jurisdiction in Union List matters, and the Union and a State may by special agreement confer more.

Test yourself

1. Distinguish articles 132, 133 and 134 in one sentence each. Article 132 gives an appeal in any kind of proceeding on a certificate that a substantial question of law as to the interpretation of the Constitution is involved; article 133 gives an appeal in a civil proceeding on a certificate that a substantial question of law of general importance needs to be decided by the Supreme Court; article 134 gives an appeal in a criminal proceeding in the two death-sentence cases automatically and otherwise on a certificate that the case is fit for appeal.

2. What is special about article 136? It operates notwithstanding anything else in the Chapter, needs no certificate, reaches any judgment, decree, determination, sentence or order in any cause or matter of any court or tribunal in India except those under Armed Forces law, and is entirely in the Supreme Court's discretion, so no litigant has a right to it.

3. What did the Thirtieth Amendment change? It removed the pecuniary test from article 133 and substituted the test of a substantial question of law of general importance which in the High Court's opinion needs to be decided by the Supreme Court.

4. Where does article 136 come from historically? From the Crown's prerogative to admit appeals from subjects beyond the seas, which produced the Privy Council's appeal by special leave. Article 136 restates it as a power of an Indian court and in wider terms, particularly in criminal matters.

5. What does article 134A do? It requires a High Court, when passing a judgment of the kind mentioned in articles 132(1), 133(1) or 134(1), to determine as soon as may be whether a certificate should be given, on its own motion if it thinks fit and necessarily if an oral application is made by or on behalf of the aggrieved party immediately after the judgment.