The Substantive Nature of the Right of Appeal in Indian Jurisprudence

The Enduring Nature of the Right of Appeal as a Substantive Right in Indian Jurisprudence

Introduction

The right of appeal, a cornerstone of any robust legal system, represents a litigant's opportunity to seek review of a decision rendered by a lower adjudicatory body. In Indian law, this right is not merely a procedural formality but has been consistently recognized as a substantive right. This characterization carries profound implications, particularly concerning its accrual, divestment, and the effect of legislative amendments. This article undertakes a comprehensive analysis of the principle that the right of appeal is a substantive right, drawing upon landmark judgments of the Supreme Court of India and various High Courts, as well as foundational legal doctrines. It will explore the genesis of this principle, its crystallization, scope, limitations, and its enduring relevance in contemporary Indian legal practice.

The Genesis and Establishment of the Principle

The understanding of the right of appeal as a substantive right has deep roots, significantly influenced by common law traditions and affirmed through pivotal judicial pronouncements in India.

Early Recognition and Foundational Precedents

The Judicial Committee of the Privy Council, in the seminal case of Colonial Sugar Refining Co., Ltd. v. Irving[1], laid down that the right of appeal is not a mere matter of procedure but a substantive right. This principle posits that such a right vests in a litigant at the time of the institution of the original proceedings (the lis). The Supreme Court of India adopted and reiterated this stance in numerous landmark decisions. In Hoosein Kasam Dada (India) Ltd. v. State Of Madhya Pradesh And 3 Others[2], the Court emphatically held that a right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences. This means that the right is to be governed by the law prevailing at the date of the institution of the suit or proceeding, not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This principle was also affirmed in cases like Nana bin Aba v. Sheku bin Andu[3] and Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi[4], which were relied upon in subsequent Indian judgments.

Landmark Pronouncements: Hoosein Kasam Dada and Garikapati Veeraya

The Supreme Court in Hoosein Kasam Dada[2] further clarified that once a lis commences, all rights, including the right of appeal, become crystallized. Consequently, no impediment can be placed on a potential appeal unless the law is made retrospective, either expressly or by clear implication. The Court struck down the application of an amendment requiring pre-deposit of tax for an appeal to be admitted, as the amendment came into force after the assessment proceedings had commenced, thereby impairing a vested right.

Similarly, in Garikapati Veeraya v. N. Subbiah Choudhry & Others[5], the Supreme Court conducted an exhaustive review of authorities and reiterated five key propositions, including that the right of appeal is a substantive right, not merely a matter of procedure. It vests in the suitor at the time of the institution of the original suit, and such a vested right cannot be taken away by a subsequent enactment unless the enactment so provides expressly or by necessary intendment. The Allahabad High Court in Sharafat Ullah Khan v. Raja Udairaj Singh[6], relying on Garikapati Veeraya[5], also affirmed this position, stating, "The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding."

Crystallization of the Right: When Does it Vest?

A crucial aspect of the substantive nature of the right of appeal is determining the precise moment it vests in a litigant.

Commencement of Lis

As established in Hoosein Kasam Dada[2] and Garikapati Veeraya[5], the right of appeal accrues at the commencement of the lis. The Supreme Court in Vitthalbhai Naranbhai Patel v. Commissioner Of Sales Tax, M.P., Nagpur[7], while ultimately dismissing the appeal due to lack of evidence on when the lis commenced, acknowledged the principle from Hoosein Kasam Dada[2] that once a lis commences, all rights become crystallized. The determination of when the lis commenced is therefore critical in assessing the applicability of any subsequent legislative changes affecting the right of appeal.

Appeal as a Continuation of Suit

The conceptualization of an appeal as a continuation of the original suit further solidifies its substantive character. The Madhya Pradesh High Court in Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd. And Others[8], citing the Supreme Court, observed that "an appeal is a continuation of the suit, and it is not merely that a right of appeal cannot be taken away by a procedural enactment which is not made retrospective, but the right cannot be impaired or imperiled nor can new conditions be attached to the filing of the appeal; ‘nor can a condition already existing be made more onerous or more stringent so as to affect the right of appeal arising out of a suit instituted prior to the amendment’." This underscores that the rights governing the appeal are those that existed when the suit itself was filed.

Scope and Limitations of the Substantive Right of Appeal

While the right of appeal is substantive, it is not absolute and is subject to statutory conferment and certain distinctions from purely procedural aspects.

Non-Impairment by Subsequent Legislation

A direct consequence of the substantive nature of the right of appeal is its protection from impairment by subsequent legislative changes that are not expressly retrospective. In State Of Bombay v. Supreme General Films Exchange Ltd.[9], the Supreme Court held that amendments to the Court Fees Act, which imposed more onerous conditions (higher court fees) for filing an appeal, would not apply to appeals arising from suits instituted before the amendment, as this would impair the substantive right of appeal. The Court reiterated that the right of appeal is a substantive right that cannot be impaired by procedural changes unless explicitly stated by the legislature.

Distinction from Procedural Aspects

It is essential to distinguish the substantive right of appeal from the procedural rules governing its exercise. The Supreme Court in Thirumalai Chemicals Limited v. Union Of India And Others[10] clarified this distinction: "Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act."

This distinction was also evident in Jose Da Costa And Another v. Bascora Sadasiva Sinai Narcornim And Others[11], where the Supreme Court determined that a "reclamacao" under the Portuguese Civil Code was merely a procedural mechanism, not a substantive right protected from the supersession of Portuguese procedural law by Indian law. Similarly, in Superintending Engineer And Others v. B. Subba Reddy[12], the Court differentiated between the substantive right to appeal under Section 39 of the Arbitration Act, 1940, and procedural tools like cross-objections, which are governed by Section 41 and the Code of Civil Procedure. The Bombay High Court in Rendezvous Sports World v. Board Of Control For Cricket In India[13] also noted that while the right of appeal under Section 19(1) of FEMA is a substantive right, the procedure for filing such an appeal, including provisions for condonation of delay, are procedural.

The forum where an appeal can be filed has also been considered a procedural matter. The Andhra Pradesh High Court in Motichand Jain v. Jaikumar M. And Others[14], citing Salmond's Jurisprudence, distinguished between the substantive right to recover property and the procedural question of "in what Courts and within what time I must institute proceedings."

Conditional Right of Appeal

The Supreme Court in Vijay Prakash D. Mehta And Another v. Collector Of Customs (Preventive), Bombay[15] introduced an important nuance. It held that while the right of appeal is a substantive right, if the statute granting the right itself imposes a condition (e.g., pre-deposit for customs appeals under Sections 129-A and 129-E of the Customs Act, 1962), then that condition is an integral part of the substantive right. The Court stated, "Right to appeal is neither an absolute right nor an ingredient of natural justice... The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant." This distinguishes situations where a pre-existing unconditional right is sought to be impaired by a new condition (as in Hoosein Kasam Dada[2]) from situations where the right is granted conditionally from its inception.

Statutory Conferment and Express Bar

The right of appeal is fundamentally a creature of statute. As noted in Vijay Prakash D. Mehta[15], it is a statutory right. This implies that if a statute does not provide for an appeal, or expressly bars it in certain circumstances, then no inherent right of appeal can be claimed. For instance, the Madras High Court in Employees' State Insurance Corporation And Others v. Shanmugha Theatres, Coimbatore, And Others[16] discussed situations where an appeal might not be maintainable based on the specific provisions of the Contempt of Courts Act.

Implications of the Substantive Nature of Appeal

The characterization of the right of appeal as substantive has several significant legal and practical implications.

Protection Against Retrospective Application of Amendments

The most significant implication is the protection it affords litigants against the retrospective application of legislative amendments that would curtail or make more onerous the right of appeal that vested in them at the commencement of the suit. This principle, firmly established by Hoosein Kasam Dada[2] and State Of Bombay[9], ensures legal certainty and fairness, preventing litigants from being blindsided by changes in law that affect their pre-existing rights to seek appellate review. The Madras High Court in Sp. Rm. Ramaswami Chettiar v. Sp. Rm. Sp. Ramanathan Chettiar And Others.[19] and the Punjab & Haryana High Court in Gordhan Das Baldev Das v. Governor-General In Council[20] also emphasized this protection of vested appeal rights against non-retrospective statutory changes.

The Supreme Court in Milkfood Ltd. v. GMC Ice Cream (P) Ltd.[21], while primarily deciding the applicable Arbitration Act based on the commencement of proceedings, implicitly upheld the continuation of rights (including appeal mechanisms) under the 1940 Act because the proceedings had commenced before the 1996 Act came into force, reinforcing the idea that rights existing at commencement are preserved.

Accrual of Rights to Decree-Holder upon Expiry of Appeal Period

Conversely, the finality of a judgment, once the period for appeal has expired without an appeal being filed, also creates a substantive right in favour of the decree-holder. The Supreme Court in PATHAPATI SUBBA REDDY (DIED) BY LRS AND ORS v. SPECIAL DEPUTY COLLECTOR (LA)[17] observed that "on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed." This principle has been reiterated by High Courts, for example, by the Gujarat High Court in THE SIDDHAPUR NAGARIK SAHAKARI BANK LTD THRO JASAVANTBHAI GOPALDAS MODH v. STATE OF GUJARAT[18] and the Chhattisgarh High Court in BADRI PRASAD v. RAMDAS GOND THROUGH LEGAL HEIRS[22]. This highlights that the substantive nature of appeal rights has a dual aspect, protecting both the appellant's right to challenge and the respondent's right to finality.

Contemporary Judicial Affirmation

The principles discussed continue to be affirmed by Indian courts. The Bombay High Court in FAIZAL HASAMALI MIRZA @ KASIB Vs THE STATE OF MAHARASHTRA AND ANR.[23] eloquently stated, "A right of appeal, where it exists, is a matter of substance, and not of procedure... Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty." The Andhra Pradesh High Court in Rekha Timber Depot, Ongole v. Deputy Commercial Tax Officer-I, Ongole, Prakasam District[24], relying on Hoosein Kasam Dada[2], held that vested rights of appeal cannot be curtailed by amendments (such as those restricting the power to condone delay) unless such amendments are explicitly retrospective. These decisions demonstrate the consistent application and enduring importance of treating the right of appeal as a substantive one.

Conclusion

The jurisprudence of Indian courts has firmly and consistently established that the right of appeal is a substantive right, not merely a procedural one. This right vests in a litigant at the commencement of the original legal proceedings and cannot be taken away or made more onerous by subsequent legislative changes unless such changes are expressly made retrospective or arise by necessary intendment. While the procedures for exercising this right, such as limitation periods or the specific forum, may be altered retrospectively, the core right to appeal itself remains protected. The distinction between an unconditional vested right and a right granted with inherent conditions is also a crucial refinement of this doctrine. This robust protection of the substantive right of appeal upholds the principles of legal certainty, fairness, and access to justice, ensuring that litigants are not unduly deprived of their opportunity for appellate review by intervening legislative changes. The continued affirmation of this principle by courts underscores its foundational role in the Indian legal system.

References

  1. Colonial Sugar Refining Co., Ltd. v. Irving LR (1905) AC 369.
  2. Hoosein Kasam Dada (India) Ltd. v. State Of Madhya Pradesh And 3 Others (1953 AIR SC 221, Supreme Court Of India, 1953).
  3. Nana bin Aba v. Sheku bin Andu (1908) ILR 32 Bom 337 (as cited in Hoosein Kasam Dada and Garikapati Veeraya).
  4. Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (1927) LR 54 IA 421 ILR 9 Lah 284 (as cited in Hoosein Kasam Dada and Garikapati Veeraya).
  5. Garikapati Veeraya v. N. Subbiah Choudhry & Others (1957 SCC 0 540, Supreme Court Of India, 1957).
  6. Sharafat Ullah Khan v. Raja Udairaj Singh (Allahabad High Court, 1959).
  7. Vitthalbhai Naranbhai Patel v. Commissioner Of Sales Tax, M.P., Nagpur (1967 AIR SC 344, Supreme Court Of India, 1960).
  8. Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd. And Others (Madhya Pradesh High Court, 2015).
  9. State Of Bombay v. Supreme General Films Exchange Ltd. (1960 AIR SC 0 980, Supreme Court Of India, 1960).
  10. Thirumalai Chemicals Limited v. Union Of India And Others (2011 SCC 6 739, Supreme Court Of India, 2011).
  11. Jose Da Costa And Another v. Bascora Sadasiva Sinai Narcornim And Others (1976 SCC 2 917, Supreme Court Of India, 1975).
  12. Superintending Engineer And Others v. B. Subba Reddy (1999 SCC 4 423, Supreme Court Of India, 1999).
  13. Rendezvous Sports World v. Board Of Control For Cricket In India (Bombay High Court, 2016).
  14. Motichand Jain v. Jaikumar M. And Others (Andhra Pradesh High Court, 2003).
  15. Vijay Prakash D. Mehta And Another v. Collector Of Customs (Preventive), Bombay (1988 SCC 4 402, Supreme Court Of India, 1988).
  16. Employees' State Insurance Corporation And Others v. Shanmugha Theatres, Coimbatore, And Others (Madras High Court, 1997).
  17. PATHAPATI SUBBA REDDY (DIED) BY LRS AND ORS v. SPECIAL DEPUTY COLLECTOR (LA) (2024 SCC ONLINE SC 513, Supreme Court Of India, 2024).
  18. THE SIDDHAPUR NAGARIK SAHAKARI BANK LTD THRO JASAVANTBHAI GOPALDAS MODH v. STATE OF GUJARAT (Gujarat High Court, 2024).
  19. Sp. Rm. Ramaswami Chettiar v. Sp. Rm. Sp. Ramanathan Chettiar And Others. (Madras High Court, 1950).
  20. Gordhan Das Baldev Das v. Governor-General In Council (Punjab & Haryana High Court, 1951).
  21. Milkfood Ltd. v. GMC Ice Cream (P) Ltd. . (2004 SCC 7 288, Supreme Court Of India, 2004).
  22. BADRI PRASAD v. RAMDAS GOND THROUGH LEGAL HEIRS (Chhattisgarh High Court, 2025).
  23. FAIZAL HASAMALI MIRZA @ KASIB Vs THE STATE OF MAHARASHTRA AND ANR. (Bombay High Court, 2023).
  24. Rekha Timber Depot, Ongole v. Deputy Commercial Tax Officer-I, Ongole, Prakasam District (2002 SCC ONLINE AP 767, Andhra Pradesh High Court, 2002).