Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

Article 110, Draft Constitution 1948

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in a State, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution.

(2) Where the High Court has refused to give such a certificate, the Supreme Court may, if it is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution, grant special leave to appeal from such judgment, decree or final order.

(3) Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court not only on the ground that any such question as aforesaid has been wrongly decided, but also on any other ground.

Explanation.-For the purposes of this article, the expression “final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

Article 132, Constitution of India 1950

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution.

⁠(2) Where the High Court has refused to give such a certificate, the Supreme Court may, if it is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution, grant special leave to appeal from such judgment, decree or final order.

⁠(3) Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground.

⁠Explanation.—For the purposes of this article, the expression “final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

Draft Article 110 (Article 132) was debated on 3 June 1949. It conferred appellate jurisdiction to the Supreme Court for cases emerging from the High Courts that involved crucial questions on the interpretation of the Constitution.

A member sought to substitute ‘State’ in clause 1 with ‘territory of India’. He argued that ‘State’ would have a more restrictive scope – it would leave out provinces which would be acquired and would join India.

There was a proposal to omit ‘as to the interpretation of this Constitution’ from clauses (1) and (3). He pointed out that by qualifying an issue to be a substantive question of law relating to the interpretation of the Constitution, crucial questions and defects relating to other laws would be unchallenged. ‘Grossest violations’ in the Indian Penal Code, the Evidence Act and other laws could not be appealed to the Supreme Court. Consequentially, the High Courts must be empowered to grant appeal certificate to all cases including issues on substantive questions of law. Since the Supreme Court would be vested with the powers of the erstwhile Privy Council and Federal Courts, there was no need to restrict the Supreme Court’s appellate jurisdiction.

A member from the Drafting Committee responded to the above concerns. He clarified the scope of the Draft Article: ‘irrespective of any value, if a substantial question as to the interpretation of the constitution arises, an appeal lies to the Supreme Court’. So, the Draft Article dealt solely with constitutional questions. With respect to claims relating to other laws/subject matters, subsequent articles covered the Supreme Court’s jurisdiction. Draft Article 111 and 112 allowed the Court to hear appeals on a variety of issues that would cover any criminal or civil issues. The Chairman of the Drafting Committee reiterated his colleague’s arguments. He stressed that the Draft Article concerned jurisdiction regarding only constitutional issues, other issues are covered under Draft Article 111.

The Assembly accepted a minor amendment as moved by the Drafting Committee – other proposals were negatived. The Article was adopted on 3 June 1949.