Legal Notes by Arvind Datar: The need to resurrect Articles 132-134A

A perusal of decisions of the Supreme Court from the 50s till the late 70s show that several appeals came to be heard based on a certificate granted by the High Courts under Articles 132, 133 and 134. Once a certificate was granted, there was no need to file any special leave petition under Article 136. 

Important changes were made by the Constitution (Forty-Fourth Amendment) Act, 1978 to this group and of particular significance, was the insertion of Article 134A which enabled the High Court to grant a certificate on its own motion or an “oral application” which was made immediately after passing of the judgment. The certificate under Article 134A could be granted if the ingredient of Articles 132 to134 were satisfied.

For inexplicable reasons, the practice of High Courts granting certificates has become almost non-existent and advocates hardly make an oral application under Article 134A. These articles are extremely important and need to be resurrected so that High Courts can grant certificates in suitable cases and thus reduce the burden of the Supreme Court under Article 136. 

It is, therefore, necessary to examine the scope of these articles. Article 132 enables the High Court to grant a certificate if the case involves a substantial question of law on the interpretation of the Constitution. Under Article 132, the nature of case could be civil, criminal or any other proceedings. What is important is that there must be a need to interpret a provision of the Constitution. It has been held that the words ‘other proceedings’ are wide and will include even tax disputes, provided they involve a substantial question of law as to the interpretation of the Constitution.

Article 133 enables a certificate to be granted in civil proceedings, subject to two conditions. The first is that the case involves a substantial question of law of general importance and, secondly, the High Court must be satisfied that the question needs to be decided by the Supreme Court.  It is further specified that no appeal under Article 133 will lie if it is a judgment of a single judge of the High Court. In other words, Article 133 applies only against the orders of the Division Bench. It is seen that the certificate imposes stringent conditions whereby there must not only be a substantial question of law, but it must be of general importance.

Article 134 covers criminal matters and Articles 134(1)(a) and (b) provide for a constitutional right of appeal where an order of acquittal has been reversed and the accused has been sentenced to death. Sub-clause (b) applies where the High Court has withdrawn a case from a subordinate court to itself and then sentenced the accused to death. Apart from these sub-clauses, where there is an automatic right appeal, the High Court can also certify that the judgment in the criminal case is a fit one for appeal to the Supreme Court.

Article 134A, which came into effect on August 1, 1979, requires a litigant to make an oral application for a grant of a certificate. Thus, if an important case has come up for decision before the High Court either relating to constitutional law, or relating to civil or criminal proceedings, it is advisable that counsel make an oral application before the High Court itself when judgment is delivered. There could be some difficulty as the details of the judgment may not be known when a lengthy judgment is pronounced, but one can make an oral application and then request the court for some time to formulate the questions as required by Articles 132, 133 or 134.

It is submitted that Article 134A enables the High Court to grant a certificate, particularly where one High Court has taken a differing view or where the case involves important questions of constitutional interpretation. Thus, it is necessary to resurrect these articles in appropriate cases instead of routinely invoking Article 136. The only point to be noted is that if an oral application is made under Article 134A and rejected, then the time limit for filing the SLP gets reduced to 60 days.

About the author: Arvind P Datar is a Senior Advocate of the Supreme Court.