Appeal to Supreme Court of India

Article 132 deals with the appellate jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation of the Constitution, and the words used in that article are:”appeal… from any judgment, decree or final order.” Article 133 deals with special in civil matters and the same words are used here also. Article 134 deals with appeals in criminal matters, and the words used in it are:”appeal…. from any judgment, final order or sentence.” In Art. 136, the words “judgment” and “decree”, which are used in Art.132 and 133 are retained. Similarly, the word’s “judgment” and……”sentence” occurring in Art. 134 are also retained. But the expression “final order” becomes “order”, and instead of the High Court, reference is made to “any Court.” Certain other words are also used in the article which seen to me to have a special significance, these being “determination,” “cause or matter” and “tribunal”. It is obvious that these words greatly widen the scope of Art. 136 They show that an appeal will lie also from a determination or order of “any tribunal” in any cause or matter.

It is well known that a writ of certiorari can issue only against an order of a judicial or quasi-judicial tribunal and if it is permissible for the High Court to issue a writ of certiorari against an industrial tribunal, which fact was not seriously disputed before us, I find it difficult to hold that the tribunal, does not come within the purview of Art. 133. If a subordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it does not possess the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari.

It is necessary here to say a few words as to the scope of the appeal. As was pointed out by Supreme Court in Pritam Singh vs. The State, A.I.R. (87) 1950 F.C. 169, the power under Art. 136 of the Constitution busing a special power is to be exercised only in special cases. The rule so laid down is bound to restrict the scope of the appeal in practice in almost all the cases which fall under Art.136. But in some a limitation will be imposed on the scope of the appeal by the very nature of the case and of the tribunal from which an appeal is sought to be brought and a case under the Industrial Disputes Act seems to be an example of such a case.

Again article 124 deals with the establishment and constitution of the Supreme Court. Article 131 confers original jurisdiction on this Court in certain disputes arising between the Government of India and the States, etc. Articles 131 and 133 deal with the appellate jurisdiction of the Court in appeals from High Courts within the territory of India in civil matters. By Art. 134 limited light of appeal in criminal cases has been allowed. The Judicial Committee of the Privy Council which was the highest Court of appeal for India prior to 10th October 1940 was not a Court of criminal appeal in the sentence in which this Court has been made a Court of criminal appeal under Art. 134. It could only entertain appeals on the criminal side in exercise of the prerogative of the King. Article 135 empowers this Court to hear all appeals which under existing laws could be heard by the Federal Court of India. By the Abolition of the Privy Council Jurisdiction Act, 1949 which came into force on 10th October 1949 all the powers that were possessed by the Judicial Committee of the Privy Council in regard to cases or matters arising in India became exercisable by the Federal Court of India whether those powers were exercisable by reason of statutory authority or under the prerogative of the King. The powers of the Judicial Committee were conferred upon it by the Judicial Committee Act, 1844 (7 and 8 vict c. 69). Appeals lay to His Majesty in Council from judgments, sentences, decrees or orders of any Court of justice within any British colony or possession abroad. Closely following Art. 135 which confers all the powers of the Judicial Committee on the Supreme Court comes Art. 136. The language employed in this article is very wide and is of comprehensive character. Powers given are of an overriding nature. The article commences with the words “Notwithstanding anything in this Chapter”. These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous article on this Court’s power to entertain appeals. These articles dealt with the right of appeal against final decisions of High Courts within the territory of India. Article 136, however, overrides that qualification and empowers this Court to grant special leave even in case where the judgment has not been given, by a High Court but has been given by any Court in the territory of India; in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc. The word “order” in Art 136 has not been qualified by the word “final’’. It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also. Another new feature introduced in Art.136 is the power given to grant special leave against orders and determinations etc., of any tribunal in the territory of India. This word did not find place in the Judicial Committee’s Act, where the phrase used was “a Court of justice”. It is the introduction of this new expression in Art.136 that has led to considerable argument as to its scope. Another expression that did not find place in the Judicial Committee Act but has been introduced in Art.136 is the word ‘determination”. A question has been raised as to the meaning to be given to these words in the article. On the one hand, it was contended that the words “determination” and “tribunal” were introduced in the article in order to bring within the scope of the appellate jurisdiction of this Court all orders of tribunals of different varieties and descriptions. On the other hand, it was said that the words ‘‘determination” and “tribunal” were added in the article by way of abundant caution and the intention was that if a tribunal exercised the judicial powers of the State and the decisions passed in the exercise of that power, this Court as the highest judicial Court in the Republic would have power if it considered necessary in the ends of justice to grant special leave. Clause (2)of Ar.136 excluded the jurisdiction of this Court in respect of military Courts or tribunal. It is interesting to observe that in Arts. 138,139 and 140 the Constitution has conferred powers on Parliament for further enlargement of the powers of this Court.

Now two points need to be considered (1)whether the word “Tribunal” in this article has been used in the same sense as ‘‘Court”, or whether it has been used in a wider sense, and (2) whether the word “determination “ in the article includes within its scope the determinations made by industrial tribunals or other similarly constituted bodies or whether it has reference only to determinations of a Court or a tribunal of a purely judicial character. It was conceded by the learned counsel appearing for the Central Government, Mr. Alladoi Krishna. swami Aiyar, that if any tribunal, whether administrative domestic or quasi-judicial, acts in excess of its jurisdiction, then it can be controlled by the High Court under the powers conferred on them by Art. 228 by the issue of a writ of certiorari. It was said that if the industrial tribunal in this case could be proved to have trespassed beyond the limits of its statutory jurisdiction, then the remedy lies elsewhere and not by a petition of special leave under Art. 136. Mr. Alladi’s contentions may be briefly summarized as follows:(1) The expression “tribunal” means seat of a Judge, or a Court of justice. Its necessary attribute is that it can give a final judgment between two parties which carries legal sanction by its own force. That the word “tribunal” in juxtaposition to the word ‘Court’ could only mean a tribunal which exercised judicial functions of the State and did not include within its ambit a tribunal which had quasi-judicial or administrative powers. (2) The kind of orders against which special leave to appeal could be given under Art. 136 have to be of the same nature as passed by a Court; in other words, it was said that unless there was a judicial determination of a controversy between two parties, the order would not be appealable. That in the case of an industrial tribunal what gives binding force to the award is the declaration of the Government, that the spark of life to it is given by that declaration and without that the award of the tribunal is lifeless and has no enforceability and hence cannot be held to be of an appealable nature. It was further said that in case between the Government and its employees by the procedure prescribed in the Act the award could also be rejected and that being so, by its own determination a tribunal could not impose a liability or affect rights. Dr. Bakshi Tek Chand, appearing for the bank, on the other hand argued that whenever a tribunal, whether exercising judicial or quasi-judicial functions, determined a matter in a judicial manner, then such a determination is within Art. 136. It was said that an industrial tribunal has no administrative or executive functions, that its duty is to adjudicate on an industrial dispute, i. e., to act as a Judge, on certain kinds of disputes between employers and employees and that its functions are of a judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give but that is because of the powers conferred on it by law. It was argued that the plain words of the article should not be given a narrow meaning when the intention of the Constitution was to confer the widest power on this Court. It was further contended that as between private employers and employees and even in certain case between Government and its employees the decision of the tribunal was binding on the Government and Government had no power either to affirm, modify or reject it. All that it was authorised to do was to announce it and by its declaration give it enforceability; that fact, however could not affect the question of appealability of the determination under Art. 136. It was finally argued that powers should be exercised by this Court wherever there is a miscarriage of justice by a determination of any tribunal and that if the intention of the Constitution by use of the word “tribunal” was in the same sense as “Court” then it was not necessary to import it in Art. 136, because all tribunals that exercise judicial functions fall within the definition of the word “Court” though they may not have been so described.

By Art. 32 of the Constitution, the Court is empowered to see that the fundamental rights conferred on the citizens by the Constitution are not in any way affected. By Art. 126 it has been given overriding power to grant special leave to appeal against orders of Court and tribunals which go against the principles of natural justice and lead to grave miscarriage of justice. The exercise of these powers could only have been contemplated in cases which affect the right of people living within the territory of India in respect of their person, property or status. The question, therefore, for consideration is whether the jurisdiction conferred by use of unambiguous phraseology and by words which have a plain grammatical meaning and are of the widest amplitude should be limited and restricted on considerations suggested by Mr. Alladi. The construction suggested by the learned counsel, if accepted, would in the first instance make the use of certain words in the article unnecessary and redundant and would run counter to the spirit of the Constitution. It must be presumed that the draftsmen of the Constitution knew well the fact that there were number of tribunals constituted in this country previous to the coming into force of the Constitution which were performing certain administrative quasi-judicial or domestic functions, that some of them had even the trappings of a Court but in spite of those trappings could not be given that description. It must also be presumed that the constitution makers were aware of the fact that the highest Courts in this country had held that all tribunals that discharged judicial functions fell within the definition of the expression “Court.” If by the use of the word “tribunal” in Art. 136 the intention was to give it the same meaning as “Court,” then it was redundant and unnecessary to import it in the article because, by whatever name described, such a tribunal would fall within the definition of the word “Court.” The word “Court” has a well-known meaning in legislative history and practice.

 As pointed out in Halsbury’s Laws of England, the word “Court” originally meant the King’s Palace but subsequently acquired the meaning of, (1) a place where justice was administers and (2) the person or persons who administer it. In the Evidence Act, it is defined as including all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. In R.v. London Country Council (1931) 2 K.B. 215:(100 L.J. K.B. 760), Savilla L.J. gave the following meaning to the word “Court” or “judicial authority”:

“It is not necessary that it should be a Court in the sense that this Court is a Court ; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court ; if it is a tribunal which has to decide rightly after hearing evidence and application.”

As pointed out  by Lord Sankey L.C. in Shell Cc. of Australia vs. Federal Commissioner of Taxation, (1931) A.C. 275:(100 LJ P.C. 55), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that such tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions are within the ambit of the word “tribunal’ in Art.136 of the Constitution. It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, not because it gives decisions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body. The intention of the Constitution by the use of the word “tribunal” in the article seems to have been to include within the scope of Art. 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition.


Categories: CIVIL

Tagged as: ,