Report No. 58
Substitution of appeal in section 257 considered inappropriate
6.32. During the course of our discussion, we considered the question whether the substitution of an appeal to the Supreme Court (in place of the present procedure of reference) in section 257 would be an appropriate course, and we examined the point whether providing for such an appeal would be juristically sound and practically useful and convenient to the party concerned. We came to the conclusion that, if an appeal is provided instead of the present reference proceedings under section 257, it would be inappropriate to limit the appeal to only the point on which there was a divergence of opinion amongst the High Courts.
The concept of an appeal and its scope will naturally be determined by the conditions on which an appeal1 provided for under the statute; and, in the present case, we are recommendiVthe amendment of section 261 of the Act and suggesting that an appeal to the Supreme Court should lie on a certificate by the High Court that the case involves a substantial question of law of general importance which, in the opinion of the High Court, needs to be decided by the Supreme Court.
1. Paras. 6.35 and 6.39, infra.
6.33. If that recommendation (concerniLng section 261) is accepted, then it would be juristically unsound to provide for an exception in regard to cases falling under section 257 and state that, in cases where an appeal lies to the Supreme Court directly, all questions which arise in appeal should fall to be considered by the Supreme Court even if they do not satisfy the tests recommended by us. This latter provision would be inconsistent with section 261, if that section is amended in accordance with our recommendation.
6.4. Having given our anxious and careful consideration to the problem, we are satisfied that, consistently with the philosophy which we have accepted against the usefulness of the reference proceedings, the provision about the direct reference to the Supreme Court contemplated by section 257 should also be deleted.