The End of the Appeal to London, 1947 to 1950

Section 2 defines two expressions. A "High Court" means any High Court to which Chapter II of Part IX of the Government of India Act 1935 applies, that is, the High Courts of the last two chapters. A "judgment to which this Act applies" means any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council, either with or without special leave, had the Act not been passed.

Section 3 is the enlargement itself. As from the appointed day:

• an appeal shall lie to the Federal Court from any judgment to which the Act applies, without the special leave of the Federal Court if an appeal could have been brought to His Majesty in Council without special leave under the Code of Civil Procedure 1908 or any other law in force immediately before the appointed day, and with the special leave of the Federal Court in any other case;
• in any such appeal it shall be competent for the Federal Court to consider any question of the nature mentioned in section 205(1) of the Act of 1935, that is, a substantial question of law as to the interpretation of that Act; and
• no direct appeal shall lie to His Majesty in Council, with or without special leave, from any such judgment.

Read the second limb again. It joins the two jurisdictions: a court hearing an ordinary civil appeal may now decide a constitutional question in it, without a separate certificate. That is the shape of the Supreme Court of India's work today.

Section 4 continues what the High Courts had already done. All proceedings and steps taken in, and orders made and certificates granted by, a High Court in connection with an appeal to His Majesty in Council from a judgment to which the Act applies are deemed to be proceedings and steps taken in connection with an appeal to the Federal Court, unless the records had already been transmitted to His Majesty in Council before the appointed day. A litigant who had obtained a certificate for London did not have to start again.

Section 5 deals with pending applications for special leave. Every application to His Majesty in Council for special leave to appeal from a judgment to which the Act applies, remaining undisposed of immediately before the appointed day, stands transferred and is to be disposed of by the Federal Court as if it had been an application duly made to that Court.

Section 6 modifies existing laws. The provisions of the Code of Civil Procedure 1908 and of any other law in force immediately before the appointed day relating to direct appeals in civil cases to His Majesty in Council have effect, in relation to an appeal from a judgment to which the Act applies, as if for all references to His Majesty in Council there had been substituted references to the Federal Court. One drafting device converts a whole body of appellate law.

Section 7 is the saving. The preceding provisions do not apply to an appeal which was pending before His Majesty in Council immediately before the appointed day if the records had been transmitted before that day, or to the bringing of an appeal for which special leave had been granted before the appointed day; and any such appeal may be disposed of by His Majesty in Council as if the Act had not been passed.

Section 8 answers the practical question sections 4 and 7 both raise: who decides whether the records were transmitted before the appointed day? A certificate of the Registrar of the High Court that they were or were not transmitted is conclusive evidence on the question.

Step two: the Act of 1949

The Abolition of Privy Council Jurisdiction Act 1949 abolished the jurisdiction of the Privy Council over India.

This is the date MU prints, and it is the right date for the proposition "appeals to the Privy Council ended". It is not the right date for either of the other two propositions, and an answer that gives only 1949 is giving a third of the story.

Step three: the Constitution, 1950

Two articles do the work, and a student should be able to name both.

Article 124 establishes the Supreme Court of India, consisting of a Chief Justice of India and other judges. That is a new court, created by the Constitution.

Article 374 is the transitional provision, and it is the article that makes the transfer painless. It provides that the judges of the Federal Court holding office immediately before the commencement of the Constitution shall, unless they elect otherwise, become judges of the Supreme Court; that all suits, appeals and proceedings pending in the Federal Court shall stand removed to the Supreme Court, which shall have jurisdiction to hear and determine them; and that the judgments and orders of the Federal Court delivered or made before the commencement shall have the same force and effect as if delivered by the Supreme Court. It also deals with what was to happen to appeals to His Majesty in Council still pending.

Article 135 completes the picture for jurisdiction: until Parliament otherwise provides, the Supreme Court has jurisdiction and powers in relation to any matter to which articles 133 and 134 do not apply, if jurisdiction and powers in relation to it were exercisable by the Federal Court immediately before the commencement. That is how the enlarged civil jurisdiction given by the Act of 1948 passed to the Supreme Court.

Why it took three steps

Because each step answered a different problem, and it is worth setting them out that way.

The Act of 1948 answered a practical problem: appeals were going to London from a country that was about to become independent, at great expense and delay, and the Federal Court existed and could take them.

The Act of 1949 answered a constitutional problem: a sovereign Dominion cannot have a foreign tribunal as its final court, however good that tribunal is.

Article 374 answered a transitional problem: what happens to the judges, the pending cases and the decided cases when one court is replaced by another. Its answer is continuity, and it is why no Indian litigant lost anything in the change.

A worked example

Follow one appeal through all three steps.

A civil appeal filed in 1946 from the Bombay High Court, on a valuation certificate, to His Majesty in Council.

1. Under the Act of 1948 the class of appeal is transferred: civil appeals that would have gone to His Majesty in Council go to the Federal Court. Whether this particular pending appeal moves depends on the Act's own transitional provisions.
2. Under the Act of 1949 the Privy Council's jurisdiction over India is abolished, so nothing further can go there.
3. On 26 January 1950, under article 374, any part of it still pending in the Federal Court stands removed to the Supreme Court, which hears it. Judgments already given by the Federal Court have effect as if given by the Supreme Court.

The litigant's case is decided by a different court from the one he filed in, under a different constitution, and nothing about his rights in the appeal is lost. That is what a good transitional provision does.

What beginners get wrong

"The Privy Council appeal was abolished in 1949." It was abolished in 1949, having been largely emptied by the Act of 1948, and the last consequences were dealt with by article 374 in 1950. Give all three.

"The Federal Court became the Supreme Court." Not by continuation. Article 124 created the Supreme Court; article 374 transferred the Federal Court's judges, its pending cases and the effect of its judgments to it. The distinction matters, and it is the same distinction as between the Supreme Court at Calcutta and the Supreme Court of India, which are different institutions with the same name.

"India abolished the appeal because the Privy Council decided against India." The reason is constitutional, and independence is what supplies it. Ceylon, Canada, Australia and others ended the appeal at various dates for the same reason.

"The Supreme Court inherited the Privy Council's special leave." It has a power of its own, article 136, which is drafted much more widely than the Privy Council's practice and is a new creation, although the idea plainly descends from special leave.

Limits and criticism

The end of the appeal is usually described as a nationalist step and it is worth adding the two legal observations that make it a better answer.

What India lost was a court of very high quality, entirely outside the reach of the executive, whose decisions had given the whole country one body of law for eighty-eight years. Every Indian judge of the period acknowledged the quality of that work, and the Constitution itself preserved its authority by making the Federal Court's and the Privy Council's decided law effective until altered.

What India gained was not merely a court of its own but a final court with a jurisdiction no Indian court had ever had: articles 32 and 136 give the Supreme Court powers the Privy Council never possessed, and the Federal Court's constitutional jurisdiction was joined to a general civil and criminal appellate jurisdiction and to the enforcement of fundamental rights.

So the right conclusion is not that a foreign court was replaced by an Indian one. It is that a system in which the final court could do little was replaced by one in which the final court can do a great deal, and Module III is about what it does with it.

Quick revision

• Three steps, and MU's date is the middle one.
• Federal Court (Enlargement of Jurisdiction) Act 1947, Act 1 of 1948: transferred the civil appellate jurisdiction exercisable by His Majesty in Council to the Federal Court, using the power in s.206 of the Act of 1935. Not an abolition.
• Abolition of Privy Council Jurisdiction Act 1949: abolished the Privy Council's jurisdiction over India.
• Constitution, 1950: article 124 creates the Supreme Court of India; article 374 transfers the Federal Court's judges, its pending proceedings and the effect of its judgments; article 135 carries over the jurisdiction the Federal Court had.
• What was gained: articles 32 and 136, and a general appellate jurisdiction, none of which the Privy Council had.

Test yourself

1. Set out the three steps by which the appeal to the Privy Council ended, with their instruments. The Federal Court (Enlargement of Jurisdiction) Act 1947, Act 1 of 1948, which transferred the civil appellate jurisdiction exercisable by His Majesty in Council to the Federal Court; the Abolition of Privy Council Jurisdiction Act 1949, which abolished the jurisdiction; and the Constitution of India, article 374 of which transferred the Federal Court's judges and pending proceedings to the Supreme Court created by article 124.

2. Under what power was the Act of 1948 passed? Section 206 of the Government of India Act 1935, which allowed the Federal Legislature by Act to provide for appeals to the Federal Court in specified civil cases without a certificate.

3. What exactly does article 374 provide? That the judges of the Federal Court holding office immediately before the commencement of the Constitution shall, unless they elect otherwise, become judges of the Supreme Court; that suits, appeals and proceedings pending in the Federal Court shall stand removed to the Supreme Court; and that judgments and orders of the Federal Court delivered or made before the commencement shall have the same force and effect as if delivered by the Supreme Court.

4. Why is it wrong to say the Federal Court "became" the Supreme Court? Because the Supreme Court was created by article 124 as a new court, and article 374 transferred to it the Federal Court's judges, pending cases and the effect of its judgments. The two are different institutions, connected by a transitional provision.

5. What did the Supreme Court gain that neither the Federal Court nor the Privy Council had? A general civil and criminal appellate jurisdiction combined with a constitutional one, the power under article 136 to grant special leave in any cause or matter from any court or tribunal, and the power under article 32 to enforce fundamental rights, which did not exist before 1950.