An appeal to the High Court is not automatic. The condition precedent for entertaining an appeal is the satisfaction of the High Court of the case involving a substantial question of law.
The expression ‘question of law’ is qualified with the word ” substantial”
which admits no ambiguity that mere existence of a question of law does not make the appeal valid unless it is substantial. One can lend support from a judgment of the Supreme Court in case of Santosh Hazari v. Purushottam Tiwari reported in 2001 (251) ITR 84 wherein it is held that to be substantial, the question of law must be debatable and have a material bearing on the decision of the case.
When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand, if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.
In the realm of public law, the High Court exercises the power of judicial review against the illegality, irrationality and procedural impropriety of an order passed by the State or the statutory authorities and does not act as an appellate authority. Under Article 226 of the Constitution, High Court not only protects the fundamental right of the citizen but also the other legal right from injustice wherever it is found.
Article 132 of the Constitution of India, 1950 provides for an appeal to the Supreme Court from any judgment, decree or final order of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
Article 133 of the Constitution of India, 1950 provides for an appeal to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the case involves a substantial question of law of general importance and in its opinion the said question needs to be decided by the Supreme Court.
Section 35G of the Central Excise Act, 1944 provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 ( not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. The alternative remedy of appeal is subject to the satisfaction of the High Court that not only a question of law but a substantial question of law is involved.
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