Appellate and constitutional litigation

The work

Appellate work is a different craft from trial work. The record is closed, the findings below are on the page, and the task is to show that the reasoning cannot support the conclusion. Most appeals fail because they re-argue the facts. The ones that succeed identify the question, place it in the authorities, and explain why the answer given below was wrong in law.

When clients come with this

• A judgment has gone against you and the period to appeal is running.
• An authority has acted without jurisdiction, or without hearing you at all.
• A statute, rule or notification affects you and its validity is open to question.
• A tribunal has decided a point of law wrongly and the appeal lies to the High Court or beyond.
• An order must be stayed before it takes effect.

What this covers

• Writ petitions under Articles 226, 227 and 32
• First and second appeals, revisions and review
• Special leave petitions before the Supreme Court
• Appeals from the NCLAT, DRAT, NCDRC and NGT
• Constitutional challenges to statutes, rules and notifications
• Applications for stay and interim protection pending appeal

What changes when a matter goes up

Trial work is about building a record. Appellate work is about reading one that is already closed, and the two require different habits. Facts cannot be improved on appeal, witnesses cannot be recalled, and a document that should have been exhibited below is, with rare exceptions, lost to you. What remains is the reasoning of the judgment and whether it can carry the conclusion it reaches.

This is why the most valuable appellate work often happens before the appeal. Where a matter is still at trial and an appeal is foreseeable, the record is built with that in mind: objections taken and recorded, documents proved rather than merely marked, and findings sought on every issue rather than the convenient one.

Constitutional challenges

A challenge to the validity of a statute, rule or notification is a different exercise from an ordinary writ. It requires identifying the source of the power under which the instrument was made, showing that the instrument exceeds it or offends a guaranteed right, and confronting the presumption of constitutionality that attaches to legislation.

Challenges to subordinate legislation succeed more often than challenges to statutes, because rules frequently travel beyond the section under which they were framed. Reading the rule against its parent provision, word by word, is unglamorous and is where these cases are usually won or lost.

Timing and interim protection

Every appellate remedy has a period, and several of them are short: thirty days from most tribunal orders, ninety for a special leave petition in a civil matter. Condonation is available on sufficient cause, but sufficient cause must be pleaded with particulars and supported, and a routine application reciting illness or the file being misplaced is treated accordingly.

Interim protection is sought at the first hearing or not at all, in practical terms. An appeal admitted without a stay leaves the successful party free to execute, and applications made months later, after execution has begun, face the obvious question of why the urgency arrived so late.