The Federal Court, 1937 to 1950

Every element of that is article 131 of the Constitution: exclusive, original, between the Union and the States or between States, and confined to disputes involving a question on which the existence or extent of a legal right depends. When you meet article 131 you are meeting section 204.

Sections 205 to 207: appeals

205(1): an appeal lies to the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made under it; and it is the duty of every High Court to consider in every case whether such a question is involved and of its own motion to give or withhold a certificate.

205(2): where a certificate is given, any party may appeal on the ground that the question has been wrongly decided, and on any ground on which he could have appealed without special leave to His Majesty in Council had no certificate been given, and, with the leave of the Federal Court, on any other ground; and no direct appeal shall then lie to His Majesty in Council, with or without special leave.

That is article 132 of the Constitution, certificate and all, and the last words of 205(2) are the first attempt to stop a litigant bypassing the Indian court for London.

206: the Federal Legislature may by Act provide that in specified civil cases an appeal shall lie from a High Court without a certificate. That is the enlargement power under which the Federal Court (Enlargement of Jurisdiction) Act 1947 was later passed, and it is the ancestor of article 138.

207: an appeal lies from a High Court in a Federated State on a question concerning the interpretation of the Act or an Order in Council, or the extent of the authority vested in the Federation by an Instrument of Accession, or arising under an agreement about the administration of a Federal law in the State; such an appeal is by way of special case stated for the opinion of the Federal Court.

208: an appeal lies to His Majesty in Council from the Federal Court: without leave from a judgment given in its original jurisdiction in a dispute about the interpretation of the Act, and in any other case by leave of the Federal Court or of His Majesty in Council.

So the Federal Court is not the final court. It sits between the High Courts and the Privy Council, and that is the position until 1949.

Sections 210 to 213: what makes it a supreme court

210: all civil and judicial authorities throughout the Federation shall act in aid of the Federal Court, and its orders for attendance of persons, discovery or production of documents, or punishment of contempt are enforceable by all courts and authorities in every part of British India or a Federated State. That is article 144.

212: the law declared by the Federal Court, and by any judgment of the Privy Council, shall so far as applicable be recognised as binding on, and shall be followed by, all courts in British India, and in a Federated State so far as respects the Act or matters within the Federal Legislature's power. That is article 141, and it is the moment when a doctrine of binding precedent from an Indian court enters Indian law by statute.

213: if it appears to the Governor-General that a question of law has arisen or is likely to arise of such a nature and public importance that it is expedient to obtain the opinion of the Federal Court, he may in his discretion refer it to the court, which may after such hearing as it thinks fit report to him. That is article 143, the advisory jurisdiction, down to the word "report".

214: the court may with the Governor-General's approval make rules of court, including rules about persons practising before it and about the summary determination of frivolous or vexatious appeals. Compare article 145.

216: the administrative expenses of the Federal Court are charged upon the revenues of the Federation. Compare article 146(3).

The table a student should be able to reproduce

That table is the answer to the question "what did India inherit from the Government of India Act 1935?", so far as the courts are concerned, and it is worth learning as a table.

What the Federal Court did not have

Three things, and the omissions are as instructive as the powers.

No general appellate jurisdiction. It could not hear an ordinary civil or criminal appeal. A litigant with a large money claim and no constitutional question went past it, directly to the Privy Council. That is why the Act of 1947 had to enlarge its jurisdiction, and why article 133 and article 134 of the Constitution give the Supreme Court the general civil and criminal appeals the Federal Court lacked.

No power to enforce fundamental rights, because there were none. The Act of 1935 contained no bill of rights, so there was nothing corresponding to article 32.

No finality. The appeal to His Majesty in Council under section 208 stood above it.

A worked example

A Provincial Act of 1940 is challenged as being beyond the Province's legislative competence. Follow it.

1. The point arises in a subordinate court. Under section 225 the High Court must transfer the case to itself.
2. The High Court decides it, and must consider of its own motion under section 205(1) whether the case involves a substantial question of law as to the interpretation of the Act. It certifies.
3. The Federal Court hears the appeal under section 205(2). Its decision is, by section 212, binding on all courts in British India.
4. The losing party may appeal to His Majesty in Council under section 208(b), by leave of the Federal Court or of His Majesty in Council.
5. Now move the same case to 1955. Steps 1 to 3 are articles 228, 132 and 141, and step 4 does not exist: the Supreme Court is final.

What beginners get wrong

"The Federal Court was the Supreme Court of India." It was its predecessor. Article 374 of the Constitution provided that the judges of the Federal Court should become judges of the Supreme Court and that proceedings pending before it should stand transferred, which is a merger, not a continuation under a new name.

"It was the final court of appeal from India." It was not, until the Abolition of Privy Council Jurisdiction Act 1949. Section 208 gave an appeal from it to His Majesty in Council.

"It could hear any appeal from a High Court." Only on a certificate that the case involved a substantial question of law as to the interpretation of the Act, until the Federal Legislature enlarged its jurisdiction under section 206.

"The Chief Justice of India is a title from the Constitution." It is section 200(1) of the Act of 1935.

Limits and criticism

The Federal Court was a small court with a narrow jurisdiction, and for its first decade it was also a court in a constitution that had not been finished: the federation section 5 provided for never came into existence, because the necessary States never acceded, so a Federal Court sat over a federation that did not exist.

Its importance is out of proportion to the volume of its work, for two reasons.

It gave India, for the first time, one court whose decisions bound every other court in the country, by section 212. Before 1937 the law declared by the Calcutta High Court did not bind Madras, and the only common superior was in London.

And it is the template. The Constituent Assembly did not design the Supreme Court of India from first principles; it took the Federal Court, removed the appeal to London, added a general civil and criminal appellate jurisdiction, added article 136 and added article 32, and article 374 turned one court into the other overnight. The table above is the evidence.

Quick revision

• ss.200 to 218 of the Government of India Act 1935; the court began work in 1937.
• Chief Justice of India and not more than six puisne judges; appointed by warrant under the Royal Sign Manual; retiring age sixty-five; salary not variable to disadvantage; court of record sitting at Delhi.
• s.204: exclusive original jurisdiction in disputes between the Federation, Provinces and Federated States involving a question on which the existence or extent of a legal right depends.
• s.205: appeal from a High Court on a certificate of a substantial question of law as to the interpretation of the Act, which the High Court must consider of its own motion; then no direct appeal to His Majesty in Council.
• s.206: the Federal Legislature may allow appeals without a certificate in specified civil cases.
• s.208: appeal from the Federal Court to His Majesty in Council, without leave in the federal-dispute cases and otherwise by leave.
• s.210: all authorities to act in aid. s.212: its law binding on all courts. s.213: advisory opinion on the Governor-General's reference. s.216: expenses charged.
• It had no general appellate jurisdiction, no fundamental rights to enforce, and no finality.

Test yourself

1. Who could bring a case in the Federal Court's original jurisdiction, and about what? The Federation, any of the Provinces or any of the Federated States, in a dispute between two or more of them, if and so far as the dispute involved a question, of law or fact, on which the existence or extent of a legal right depended. The jurisdiction was exclusive of any other court.

2. On what condition did an appeal lie from a High Court in British India? On a certificate by the High Court that the case involved a substantial question of law as to the interpretation of the Act or an Order in Council made under it, which every High Court was bound to consider of its own motion in every case.

3. Name four provisions of the Constitution drawn from this chapter of the Act of 1935. Article 131 from section 204; article 132 from section 205; article 141 from section 212; article 143 from section 213. Articles 124, 125, 129, 130, 138, 144 and 146(3) are also drawn from sections 200, 201, 203, 206, 210 and 216.

4. Was the Federal Court the final court of appeal from India? No. Section 208 gave an appeal from it to His Majesty in Council, without leave in cases about the interpretation of the Act arising in its original jurisdiction and otherwise by leave. It became final only after the Abolition of Privy Council Jurisdiction Act 1949.

5. What three powers did the Federal Court lack that the Supreme Court of India has? A general civil and criminal appellate jurisdiction; any power to enforce fundamental rights, there being none in the Act; and finality, an appeal lying from it to the Privy Council.