The second amendment relates to clause (2). It provided that 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 the Constitution, grant special leave from such judgment. We are therefore reduced to this that the High Court can grant certificate for appeal if there is an error affecting the interpretation of constitution and under clause (2) the Supreme Court will grant leave if there is a substantial question of law as to the interpretation of the Constitution. I submit that this Draft was made at a time when the Privy Council was functioning. In the meantime we have passed a law in the Legislative Assembly empowering the Federal Court to deal with matters which were pending before the Privy Council relating to civil matters. At that time these two clause were fully justified. There was a division of labour between the Federal Court and the Privy Council. The Federal Court had jurisdiction to entertain appeals on other matters which involved interpretation of the Constitution- the Government of India Act. So far as the Privy Council was concerned it entertained direct appeals involving question of law but which did not involve a question of interpretation of the Constitution. If any interpretation of the Constitution was involved, there was an appeal from the Federal court to the Privy Council. Now that power of the Privy Council is gone. The powers of the Privy Council and the Federal Court are to be united in the Supreme Court. The powers to restrict the right of the High Court to grant a certificate for an appeal to the Supreme Court only when the interpretation of the Constitution is involved is now obsolete, and the Federal Court has been partly enjoying and the Supreme Court will enjoy of powers of the Privy Council also. In these circumstances the powers of the Privy Council and the powers of the Federal Court as hitherto enjoyed should be combined and should be given to the Supreme Court. In fact whether the question relates to interpretation of Constitution or otherwise, the High Court should be enabled to grant a certificate, and the Supreme Court should be enabled to grant special leave, irrespective of the question whether there is a question of interpretation of Constitution or not. There may be grave errors of law affecting numerous Acts other than the constitution, and obviously appeal should be allowed on certificate by High Court on those grounds too. Then there is article 112 which tries to save the situation to a certain extent “that the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do not apply.” Therefore wherever the High Court did not grant leave or could not grant under clause (1) of article 110 or wherever the Supreme Court could not grant special leave under clause (2) of that article, then the Supreme Court has a residuary power to grant special leave. The result would be that if there is a grave failure of law in the decision of a case not involving an interpretation of Constitution, the High Court would be precluded from granting any certificate. But under article 112 the Supreme Court alone would be enabled to grant any special leave . In fact a grave error of law will not empower the High Court to grant any certificate but it would enable the Supreme Court to grant special leave. To this extent there is a clash between clause (2) of 110 empowering the Federal Court to grant leave where the question of law involves the interpretation of the Constitution and article 112 allowing the Supreme Court to grant special leave in other cases. So by combining clause (2) of article 110 and article 112 the Supreme Court has been given power to grant special leave in any case involving a question of law. While this power is given to Supreme Court the High Court’s power to grant a certificate is confined only to error of law affecting the interpretation of the Constitution. If an error of law is considered to be a serious matter which requires correction by Supreme Court, then the High Court should be enabled to grant certificate in order to make an appeal possible in the Supreme Court. Of course the Supreme Court is authorised to grant special leave but this would be highly inconvenient and expensive. A party may more easily apply to the High Court for a certificate, and a special leave matter before the Supreme Court will involve delay and expenditure which many persons may not be able to avail of. In these circumstances the net effect of the amendment suggested would be to allow the High Court to give a certificate of appeal to Supreme Court in case there is a substantial question of law.
