The Supreme Court’s Appellate Role - A Comparative Analysis Of India And The United States Of America

Author: LawSphereX

Category: General Law

Published: 2026-08-23T21:33:00.597Z

Updated: 2026-08-30T07:07:34.781Z

THE SUPREME COURT’S APPELLATE ROLE: A

COMPARATIVE

ANALYSIS

OF INDIA AND THE UNITED STATES OF AMERICA Pritam Kumar Samal, Faculty Associate, KIIT School of Law, KIIT University, Bhubaneswar & PhD Scholar, Xavier Law School, XIM University, Bhubaneswar Anwesh Panigrahi, PhD Scholar and Teaching Assistant, KIIT School of Law, KIIT University, Bhubaneswar Shreya, PhD Scholar and Teaching Assistant, KIIT School of Law, KIIT University, Bhubaneswar

INTRODUCTION

The federal court of India and the British Privy Council was succeeded and replaced by the Supreme Court as the highest court of appeal. The Supreme Court hears appeals against the judgements of subordinate courts and also considered as court of appeals. Appellate jurisdiction can be classified as appeals in constitutional matters, appeals in criminal matters, appeals in civil matters, and appeals by special leave. As the writ and decrees of the Supreme Court run throughout the country, hence, it can be inferred that powers and jurisdiction of the Supreme Court in their extent and nature are wider than those exercised by any other court of the country. Appellate Jurisdiction means the cases which comes to the Supreme Court in the form of appeals against the judgement of lower courts.

Supreme Court is the final authority in every matter that involves elaboration and interpretation of the constitution despite of the fact that it is a civil matter or criminal matter or any other proceedings. “In respect of any judgment, decree or final order of a High Court in both civil and criminal cases which involves substantial question of laws as to interpretation of the constitution, the appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under article 132(1), 133(2) and 134 of the constitution. 1” The Supreme Court has a discretion where it can grant special leave to appeal from any judgement, decree, order, sentence or determination made by any court or tribunal in the 1 “Jurisdiction of the Supreme Court” accessed 5 January 2021. territory of India under article 136 of the constitution.

This shows how wide is the Supreme Court’s appellate jurisdiction. 2 CLASSIFICATION OF APPELLATE JURISDICTION

1. Appeal in Constitutional matters

In case a party thinks that the case has been wrongly decided, then under Article 132(1) an appeal can be made to the Supreme Court provided, the High Court needs to certify the same under Article 134 A3 that the case involves question of law and there is a need of the interpretation of the constitution. Article 134 A was included in our constitution in order to avoid delay in granting the certificate for appeal by the High Court to the Supreme Court. Under this article, the High Court can grant certificate in 2 ways i.e. either on its own (under Article 132) or if the aggrieved party gives ‘oral’ application after judgement, decrees or final order has been passed. There are three condition which needs to be fulfilled before grant of certificate by the High Court under article 132(1) are as follows:

1. “The order appealed must be against a judgement, decree or final order made by the

High Court in civil, criminal or other proceedings,

2. The case must involve a question of as to interpretation of this constitution, and

3. If the High Court under Article 134 A certifies that the case be heard by the Supreme

Court.” In the case of Krishnaswami v. Governor-General-in-Council4, it was held that; “The word ‘other proceedings’ means proceedings other than civil and criminal proceedings. Secondly, the word ‘question of law’ is a question which has not been decided earlier by the Supreme Court. It also includes in such a scenario High Courts have difference of opinion on

2 Ibid.

3 The Constitution of India 1850, 44th Constitutional Amendment 1978.

4 Krishnaswami v. Governor-General-in-Council AIR 1947 FC 37.

a particular question of law and regarding to the same there is no such direct decision of the Supreme Court. ” An appeal shall lie from the High Court’s decision when the decision is considered to be the final order and further it puts an end to the suit. It has to be noted that, without final order the suit is deemed to be alive and rights are yet to be determined, therefore appeal cannot be made regarding the same. Issues and trends: In the case of Election Commission v Venkata Rao,5 there was a question raised pertaining to whether we can appeal to the Supreme Court from a single judge decision. Affirmatively, the Supreme Court held that if the case is of great importance and it is a matter containing public interest then direct appeal can be made.

While appealing to the Supreme Court, appellant can only challenge on the ground on which certificate has been granted by the High Court provided it is not special leave to appeal. 6 Special leave to appeal can only be granted by the Supreme Court if there is a grave miscarriage of justice by any decision of the High Court. 7 Such restriction is necessary The Supreme Court can also refuse to hear the appeal on the basis of competency even after the certificate has been granted by the High Court. 8 The Supreme Court should have the last say on questions of constitutional interpretation due to divergent interpretation of constitutional provisions by various High Courts which creates difficulties for the people. The machinery regarding the same is being provided by Article 132. In the case of State of Jammu and Kashmir v.

Ganga Singh9 the Supreme Court, commented on Article 132 as “the principle underlying the Article is that the final authority of interpreting the Constitution must rely with the Supreme Court. With that object the article is freed from other limitations imposed under Articles 133 and 134 and the right of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial

5 Election Commission v. Venkata Rao AIR 1953 SC 210

6“Darshan Singh v. State of Punjab AIR 1953 SC 83.

7 Than Singh v. Superintendent AIR 1964 SC 1419.

8 Syedana Taher v. State of Bombay AIR 1958 SC 253.”

9 State of Jammu and Kashmir v. Ganga Singh AIR 1960 SC 356,359.

question of law as to the interpretation of the Constitution”.10

2. Appeal in civil cases

It has been provided under Article 133 of the Constitution that after the High Court grants certificate under Article 134 A, a party can appeal to the Supreme Court from judgement, decree or final order in civil proceeding of that High court. There are certain conditions which needs to be fulfilled under Article 133 are as follow:

1. The case should involve substantial question of law of general importance and

2. It is the opinion of the High Court that the said question needs to be decided by the

Supreme Court. Earlier, there was one more condition which was removed by the 30th Amendment Act, 1972. The condition was that an appeal can be made to the Supreme Court if the value or amount in dispute in dispute is 20,000 rupees or more. Now the value in dispute is not taken into consideration because there may be cases where the dispute cannot be measured in terms of money and has far reaching results11, for example cases which are related to great private or public importance. 12 It is also to be noted that the appeal should be made within 60 days from the date High Court grants certificate. 13 The term ‘civil proceeding’ under Article 133 means the proceeding which deals with civil rights only. For example, proceeding related to infringement of civil right of a person, proceeding under Article 226 for a grant of writ, etc.

Issues and Trends: It is a well-known fact that right to appeal is a creation of statute and not an inherent right which means this right is only available if a person fulfills all the conditions given in the 10 “Article 132: Appellate Jurisdiction of Supreme Court in appeals from High Court in certain cases” accessed 6 January 2021.

11 Madan Gopal v. State of Orissa AIR 1956 Orissa 71.

12 Inda Devi v. Board of Revenue AIR 1957 All. 116.

13 “Appeals before the Supreme Court of India” accessed 6 January 2021. provision. In clause (5) of Article 133, there is a condition that there will be no right to appeal in a matter if it has been decided by a single judge in the High Court. Hence it can be inferred that right to appeal will be available if the decision has been given by a division bench. In my opinion. The fallacy in this provision is that there no direction given as to which matters will be decided by a division bench and which matters will be decided by single judge. The above prohibition can be removed by parliament through enacting a law which will not be an amendment to the constitution. 14 There was another instance in the case of Kiranmal v. Dayanoba,15 where an appeal to a civil judge decision was dismissed by the High court in one word i. e. “Dismissal”.

But the Supreme Court held that this case is fit and has to be admitted and disposed of on merit. Here, it was held that serious question of law and facts could have been raised by the appellant. Therefore, the case was remitted to the High Court. In the concurrent findings of fact by trial court and the High Court, the Supreme Court does not interfere under Article 133 provided it was found that relevant evidence has been over looked. 16 It is the Supreme Court’s discretion whether to interfere in the concurrent findings of the subordinate court or not. In the case of M. M. B. Catholics v. T. Paulo Avira,17 the Supreme Court by using its interfered in the fact findings made by the High court on the ground of misleading evidence and also on ground of ignorance of important evidences. 18

3. Appeal in criminal matters

Earlier, there was no provision known as criminal appellate jurisdiction of the Supreme Court. It was criticised and debated by some of the members of the constituent assemble. Some members argued that; “Those persons who are condemned to death cannot be recalled to life if the wrong 14 “Article 132: Appellate Jurisdiction of Supreme Court in appeals from High Court in regard to civil matters” accessed 6 January 2021.

15 Kiranmal v. Dayanoba AIR 1983 SC 461.

16 D.C. Works Ltd. v. State of Saurashtra AIR 1957 SC 264.

17 M.M.B. Catholics v. T. Paulo Avira AIR 1959 SC 31.

18 Ganga Bishan v. Jai Narain (1986) 1 SCC 75.

sentence is carried out. ” “Life is much more precious than any amount of civil rights. ” “If for property you would give a constitutional right of appeal, would you deny that in cases where death sentence is imposed. ” Some members who opposed the right to appeal in criminal matters argued on only one ground that more number of judges in the Supreme Court will be required as it’s a question of death sentence. This ground of opposing lost its value because anyhow value of human being is more than a property. 19 We can invoke the criminal appellate jurisdiction of the Supreme Court following ways; (i) Under Article 134(1) as a constitutional right to appeal. (ii) Under Article 136(1) by special leave. (iii) Under section 2 of The Supreme Court (Enlargement of Appellate Criminal Jurisdiction) Act, 1970 as a statutory right to appeal.

Section 2 of The Supreme Court (Enlargement of Appellate Criminal Jurisdiction) Act, 1970 states that, “Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters - Without prejudice to the powers conferred on the Supreme Court by clause (1) of Article 134 of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court— (a) has on appeal reversed an order of acquittal of an accused person and sentenced him

19 “Article 134: Appellate Jurisdiction of Supreme Court in in regard to criminal matters”

accessed 9 January 2021. to imprisonment for life or to imprisonment for a period of net less than ten years; (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years. ” In any judgement, final order or sentence of a criminal proceeding of a High Court, there can be an appeal to the Supreme Court under Article 134(1), if the High Court; (a) reversed the order of acquittal and awarded death sentence when appealed, (b) has withdrawn for trial before itself any case and has in such trial convicted and sentenced the accused to death; or (c) that the case is fit for appeal to the Supreme Court and certified under Article 134(1)(a). Under Article 134(2), it states that; "134.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. " Article 134(1)(a) and (b) deals with the appeal without a certificate from the High Court and Article 134(1)(c) talks about appeal with a certificate of the High Court. But if the order of conviction has been acquitted then no appeal shall lie to the Supreme Court. Issues and trends: Under Article 134(1)(c), to grant a certificate by the High Court to the accused to appeal in cases not coming under Article 134(1)(a) and (b) is discretionary. This discretion can be used only in exceptional situation like if a grave injustice has been done.

On a mere question of fact and in the absence of substantial question of law the High Court cannot grant certificate to appeal. 20

20 Sidheshwar Ganguli v. State of West Bengal AIR 1958 SC 143.

Generally, courts do not review evidences in criminal appeal but if there is some irregularity or illegality or there is some serious lapse against the court then reviewing is justified. In case of Uma Narain v. K. Karson,21 it was held that if there is no irregularity or illegality in the concurrent findings of the below courts then it is binding to the appellate court i. e. the Supreme Court. There is also a situation where judge of sessions court held that the evidences presented are unworthy but High Court gives decision relying to that particular evidence then the Supreme Court here is bound to examine the evidence to check whether there is an error of law or fact. 22 It is to be noted that if the High Court sentences the accused for life imprisonment or imprisonment for 10 years or more then there is no right to appeal under sub clauses (a) and (b) of Article 134(1).

But under exceptional circumstances i. e. either under Article 134(1)(c) or under Article 136(appeal by special leave) appeal of the petitioner can be granted. The High Court cannot exercise its discretionary power to grant certificate under Article 134(1)(c) as per their whims and fancy because they cannot convert the Supreme Court which is the Highest Court of the land to an ordinary court of criminal appeal. Therefore, the discretion has to be used carefully as per the need and requirement.

4. Appeal by Special Leave

Under Article 136(1) of the constitution, the Supreme Court has a discretionary jurisdiction where it is empowered to grant special leave to appeal from any judgement, decree, determination, sentence or order which has been given by any tribunal or court within the territory of India. There is an exclusion to the above mentioned discretion of the Supreme Court that it will not have jurisdiction over any judgement, determination, sentence or order passed by any tribunal or court constituted under law related to armed forces. The scope of Article 136(1) is very broad and wide and also it provides the Supreme Court with a plenary jurisdiction. It states that; “136. Special leave to appeal by the Supreme Court - (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any

21 Uma Narain v. K. Karson AIR 1971 SC 759.

22 Muthu Naiker v. State of T.N. AIR 1978 SC 647.

judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. ” Distinction between Article 136(1) and Article 132-134: The power of the Supreme Court under Article 136 cannot be restricted by the limitations of Article 132-134. Some of the distinctions are as follows; (i) Under Article 136(1) the word ‘order’ has not been qualified by the adjective ‘final’. Hence, even from interlocutory order the Supreme Court can grant special leave to appeal. Under Article 132 to 134, only against the ‘final order’ an appeal can be made to the Supreme Court. (ii) The Supreme Court under Article 136 can grant special leave for appeal from any tribunal or any subordinate court below the High Court.

There is no need to follow usual procedure for filing an appeal in the High Court and even in the case where there is no provision for such appeal in the law applicable to the dispute. But under Article 132-134, only against the final order of the High Court an appeal can be made. (iii) Under Article 136, an appeal shall lie against any judgement, decree, determination, sentence or order of any court or tribunal but also against “any case or matter”. But under Article 132-134 an appeal shall lie only against judgement, decree, determination, sentence or order of any tribunal or court. (iv) The Supreme Court on its appellate jurisdiction can disregard the legislations contained under Article 132-134. (v) Article 136(1) allows the Supreme Court to hear appeal against any kind of proceedings i. e. it can be criminal or civil or relating to income tax, labour disputes, etc.

, as the nature of proceedings to be dealt under this Article has not been specifically defined.

Issues and trends: On economic policy of the government the Supreme Court neither have jurisdiction nor competent to judge provided, the policy is arbitrary, unreasonable, malafide or unconstitutional.23 In the case of Jyotendra Singhji v. S.T. Tripathi, the Supreme Court held that a party cannot directly take the advantage by approaching under Article 136 before approaching the High Court under Article 226. This limitation has been imposed by the Supreme Court on itself and not mentioned anywhere in the constitution. As we know that, there is a very wide discretionary power of the Supreme Court under Article

136. How the discretion has to be exercised is explained in the case of Pritam Singh v. The

State24: “The wide discretionary power with which this court is vested under it is to be exercised in granting special leave to appeal in exceptional cases only, and as far as possible a more or less, uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which can come up before different kinds of tribunals and in a variety of other cases. ” In D. C. Mills v. Commissioner of Income tax, W. B. , the court held that “it is being an exceptional and overriding powers it has to be exercised sparingly and with caution and only in special extra ordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.

” There are other instances which has to be taken into consideration by the Supreme Court while exercising the discretionary power under Article 136; (i) If there has been gross miscarriage of justice by the below courts or fact findings are against the judicial conscience of the court. 25

23 Essar Steel Ltd. v. Union of India AIR 2016 SC 1980.

24 Pritam Singh v. The State AIR 1950 SC 169

25 Haripada Dey v. State of West Bengal AIR 1956 SC 757

(ii) Court may refuse to decide every question of law be it petty, small or big. 26 (iii) Special leave of appeal will be dismissed if it has been obtained by false representation or there is suppression of material facts by petitioner/accused. 27 (iv) For redressal of grievances under special leave to appeal in the Supreme Court, petitioner should not have any criminal background. 28 COMPARISON BETWEEN APPELLATE JURISDICTION OF THE SUPREME COURT OF INDIA AND THE SUPREME COURT OF UNITED STATES OF AMERICA Jurisdiction of both the Supreme Courts are same but there is a difference as per structure is concerned i. e. Supreme Court of India (“SCoI”) is singular in nature and Supreme Court of USA (“US SC”) is dualistic in nature. It is dualistic in nature because it has courts at both the national and state levels.

It is evident that the appellate procedure and structure of the US SC is better as compared to SCoI. 29

1. Structure

The appellate jurisdiction of the SCoI is divided as follows; (i) Article 132 (for constitutional matters) (ii) Article 133 (for civil matters) (iii) Article 134 (for criminal matters) (iv) Article 136 (special leave petition)

26 Delhi Transport Corporation v. Majalay AIR 1978 SC 764.

27 Vijai Kumar v. State of Haryana AIR 1983 SC 622.

28 R.V. Patel v. Ahmedabad Municipal Corporation 1985 SCR (2) 556.

29 “Comparative Analysis of Appellate jurisdiction of the Supreme Court of India and the Supreme Court of United States of America” accessed 11 January 2021.

Under Article 32(2) of the Constitution, the SCoI has both original and appellate jurisdiction for the Part III i.e. for enforcement of Fundamental Rights. Under Article III section 2 of the American Constitution, it talks about Appellate jurisdiction of US SC which is regulated by congress to deal with all kinds of question of law as well as fact.30 US SC has the view of “divide and conquer” whereas SCoI has the view of “put all their eggs in one bucket”. The structure of both US SC and SCoI is similar because an appeal can be made by going though one of the 13 US Court of appeals in USA and one of the 25 High Courts in India.31

2. The ‘Grant’ to appeal

Certificate of appeal is mandatory by the High Court as per Article 134-A. It has been directed by the SCoI to the High Court in order to exercise this cautiously provided there can be relaxation in exceptional cases. 32 This process is time consuming because judges of the Supreme Court have to decide whether to take an appeal or not. In case of US, a case to be considered for appeal, it has to be made via writ of certiorari (An order which gives the reasons why a higher court should review the case of a lower court). After so many judicial reforms in US, now judicial clerks are appointed who go through several petitions and after that they recommend it to the US SC judges but the appeal will be considered only if 4 out of 9 judges of US SC approve to take. 33 This somehow gives more power to judicial clerks but it decreases the burden on Judges.

In India, an appeal to be selected or rejected totally depends on the judges of SCoI. Judicial clerks are those who have completed a 3/5 years bachelor’s degree and in addition to that a 3-year juris doctor degree. But in India, right after the school can pursue law which leads to younger demographic law students but due to this majority of them lack skills.

30 “Congressional power over the Appellate Jurisdiction of the Supreme Court”

accessed 11 January 2021.

31 “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts”

accessed 11 January 2021.

32 Hindustan Commercial Bank Ltd. v Bhagwan Dass AIR 1965 SC 1142.

33 “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts” [n31]

3. Quantitative and Qualitative analysis

An average of 35,000 petitions per year are being filed in SCoI out of which mostly are Special Leave Petitions and only few are appeal matters. In US, the average is 8000 petitions that were seeking appeal. Numerous number of petitions leads to overburdening of the SCoI and further it leads to delay in decision, lack of reasoning, poor decisions, non-adherence of guidelines etc. This is not only because the number of petitions are high but also must of Special Leave Petitions are not considered to be constitutional in nature. 34 To authenticate the above mentioned statements with an example, we can consider the case of decriminalizing consensual homosexual act in 201835 which took years to get finalized. During 200936, it created an unhealthy precedent. As SCoI decisions are binding all over the territory (under Article 141), while giving decision Judges should avoid making mistakes.

This can be avoided by giving more time and critical application into the matters of grave importance. In US, laws are adjudicated on state by state basis until US SC gives the final verdict. As far as sodomy laws between two consenting adults is concerned, it was held unconstitutional in the year 2003. 37 This shows that US has accepted such law years before India accepted.

4. Number of Judges

Total number of judges in SCoI is 34 including Chief Justice of India which is less than sanctioned number and US SC the total number of judges is 9. As the total number of judges in SCoI is less than the sanctioned number38, it leads to degradation of efficiency and increase in work load. In US, for every appeal 9 judge bench is constituted and it is believed that by having a larger bench there will be application of critical minds to the fullest and the outcome will be a respectable decision.39 In India, SCoI having total of 34 judges adjudicate each appeal in groups of 2,3 or 5 as per the requirement. There is no consistency in constituting a bench. As in US SC judges sit as a unified bench, there is a lesser chance of conflict of opinion as 34 “Comparative Analysis of Appellate jurisdiction of the Supreme Court of India and the Supreme Court of United States of America” [n29].

35 Navtej Singh Johar v. Union of India (2018) 10 S.C.C. 1.

36 Naz Foundation v. Govt. of NCT of Delhi (2009) 160 DLT 277.

37 Lawrence v Texas (2003) 539 US 558.

38 “Comparative Analysis of Appellate jurisdiction of the Supreme Court of India and the Supreme Court of United States of America” [n29].

39 Ibid.

compared to SCoI. It is believed that stable bench of judges may lead to better management of appeals. There is another aspect which can be another reason for the inconsistency in SCoI is that from 1985-2010 the average tenure of 127 SCoI is 7 years where as from 1950-2010 the average tenure of 16 US SC judges is 21 years.40

CONCLUSION

As the highest court of country, the jurisdiction to modify, confirm, reverse or annul an order or decree should be with the Supreme Court. The directions which has been given by exercising appellate jurisdiction is binding and non-compliance by forum below will lead to destruction of the hierarchal system which will further lead to people losing faith on the judicial system. Unlike American SC, the court sits in benches and not en-banc. It is evident that even in countries where they follow en-banc in every case the composition of majorities varies. As we know that the Supreme Court allows petitions related to appeal very liberally, it leads to increase in pendency of the cases. Taking cognizance of injustice is a must by the apex court otherwise injustice will prevail.

In a democratic country like ours, to balance the conflicting interest and public order non-interference of the court due to pendency of cases should not be an excuse. It is not required that apex court in a country should allow each and every appeal provided it contains an important issue like question of law of great importance or grave injustice have been done. There is a need of guidelines which is to be laid down by Constitutional bench of the Supreme Court otherwise the court will be flooded with infructuous petitions as always. If judicial discretion will be exercised in cases of molding relief then it will definitely encourage illegality.

40 “An Empirical Study of the Supreme Court’s Composition”

accessed 12 January 2021.