Constituional Division With Supreme Court-A Proposal For

[Cites 48, Cited by 0]

Law Commission Report

Constituional Division With Supreme Court-A Proposal For

 

LAW COMNIISSION OF INDIA

NINETY FIFTH REPORT

ON

CONSTITUTIONAL DIVISION WITHIN THE
SUPREME COURT -- A PROPOSAL FOR

MARCH 1984



D.(). No. F. 2(4)f84-L.C.

IUSTICE K.K. MATH CHAIRMAN

Shastri Bhavan.
New Dc-lhili I0 001
March 1, I934.

 

M 3! clear Minister,

I am forwarding herewith the Niiiety-ﬁfth Report of the Law Commis-

sion on "Constitutional Division within the Supreme Court---A proposal
for."

The subject was taken up by the Law Commission on its own. The
need for taking up the subject is explained in Chapter I of the Report.

The Commission is indebted to Sbri P. M. Bakshi, Pa1't--time Member
and Shri A. K. Sriiiivaszirnurthy, Member--Secretar}r, for their valuable
assistance in the preparation of the Report.

With regards,

Yours sincerely,

(K. K. MATHEW)

Shri Ingannatii Kaushal,
Minister of Law, Iustic 8»: Ctirnp:1n§,' Aliairs,
New Delhi.

End. : 95th Report.

if)



CHAPTER
CHAPTER

C HAPTER

CHAPTER
CHAPTER
CHAPTER

Appendix

C ON'l'EN'l"S

INT RODUCTORY';

THE QUEST IONNATRE ISSU

ED BYTI-IE. LAW COMMISSION

AND THE RF.J'LTES RECEIVED THERE-TTO.
CONSTITUTIONAL ADIUDTCATION AND THE NEED FOR

'SPECIAL T)I"a' ISKON .

AMENDMENT OF THE CONSTITUTION WHETHER NEEDED.
CONSTITUTIONAL COURTS ON THE CONTINENT.

RECO IN-TMENDAT IONS. .

A?1'F.NUIX

QxI¢;!iJ11I1.in- iaaued 4: -.rIier by' 111:: Law Cutnlnissio-n of Iazdia.

I9
22
29

-V r-.-- .-x-.-» .4 -..



CHAPT ER 1
Il\"I'RODUCTORY

1.

1. The subject with which this Report is concerned is one of tunda' 5|=0P¢ and E9395"?- niental importance in the judicial system of the country and of direct relevance to the determination of constitutional controversies. Shortljj stated, the question that is proposed to be considered is, whether there is need for creating, within the Supreme Court of India, a Constitutional Division that shall be dealing exelusis'-sly with matters of public law or, more narrowly. matters of Constitutional Law. The subject has been taken up by the Lav.' Commission of India of its own, having regard to its importance.

1.2. Detailed reasons for embarking upon an inquiry of this nature f:'o|'_iSllllu1l'Onal ad- will be set out in due course.' At this stage, it will be sufhcient to state "5 that the topic has been taken up for consideration in view of the growitig importance that constitutional adjudication has assumed in the countrj:

An 5; perceptive student of the pattern of litigation that has come up before the Supreme Court in the last decade, and of the nature of questions that fall for consideration in such controversies, would agree that in point of both quality and quantity, constitutional adjudication has come to acquire :1 status of its own. It is not that this tlevelopnient was not anticipated by the framers of the Constitution. They did ensure that a question relating to interpretation of the Constitution must be allowed to ﬁnd its way to the Supreme Court, whatever he the nature of the controversy or the branch of litigation in which the question might have arisen. They did ensure that in the Supreme Court, the minimum number of Iudges who shall sit together for liearing and deciding such questions shall be live. The}; did see to it that that part of the Constitution which dea.ls with the distribution of sovereignty between the Centre and the States. must receive an authoritative interprt-:ta~ tion from the Supreme Court, and that if such a.controvesj_: happens to arise between the Centre and the States or States inter re, the dispute should he settled only by the Supreme Court, if there be a justiciable dispute. They further did take care to provide that so much of the Constitution as confers fundamental rights on the citizens and (in certain cases) even on a non citizen, should be capable of being enforced by appropriate proceedings before the Supreme Court. In short, the Constitution makers did manifest an anxietjr that a constitutional controversy should, in some form or other. come up before the Supmme Court. and should, in that forum. receive consideration at the hands of a minimum number of judges.

1.3. This concern of the constitution makers for a proper l11.'lCl'llI'lt'.1'_y Parliameiilary for the determination of constitutional questions was not io-verlooked by appr°a°h' our Parliament. Very soon after the commencement of the Constitution, Parliament showed its awareness of the importance of constitutional adjudi-

cation bj; amending the two procedural codes to provide that such questions. if the}; arose in Courts subordinate to the High Court, must be brought before the High Court for determination irrespective of the nature of the litigation in the course of which such a question arises.

1.4. Un.derlj,'ing this concern shown by the Constitutional makers, and The llndgj-]}ring by our Parliament with reference to constitutional controversies, is the 35'5""'F"°11-

1. Chapter 3, infra.

Need for further examination.

Issues.

Prior stages of the questionnaire.

1'"Cl"'1"-'r""1€ tion of this 2 implicit assumption that the forum and machinery for adjudicating on such controversies merits special attention. As every student of legislation comes to realise sooner or later and as every judicial functionary who has had anything to do with the interpretation of statutes or constitutional provisions feels in his very ﬂesh and honcsv such assumptions are never spelt out in so many words. They are not elaborated in lengthy sentences. They, in tact, do not need to be elaborated. These unspoken postulates are as vibrant as tl1e spoken word.

1.5. These implicit assumptions, always to be regarded as speaking, need to be advcrted to for considering whether the developments. of which we have spoken above,' necessitate any further provisions in the realm of the forum and machinery of constitutional adjudication. That is precisely the broad objective of this Report. ' 1.6. It is hardly necessary, in this introductory chapter, to set out the issues that need to be considered in the present inquiry, undertaken with the broad objective referred to i11 the preceding paragraph. These issues have been dealt with in the succeeding chapters of this Report followed by recommendations in the last chapter? We would, however, like to make it clear that it is not the object of the present inquiry to make suggestions towards restructuring of the judiciary for'. the sake of re--strueturin«r. Nor is i.t its object to suggest any other cltaltges for the sake of change. The inquiry is intended to examine how for the implict assumptions with refe- rence to the importance of constitutional adjudication, when approached in the light of the growing importance of such adjudication and the needs of society, render it desirable to devise further means for improving the cthcicncy of the process of such adjudication.

1.7. As a matter of record, it may he stated that prior to the prepara- Report, the Law Connnission had issued a questionnaire3 with the object of eliciting views on a number of questions concerning the func- tioning of the Supreme Court and certain other aspects of the higher judiciar-y. We take this opportunity of thanking all those who have responded to the Questionnaire. We should particularly express our gratitude to Shri M. N. Seervai who has taken very elaborate pains to express his views at length on almost every question.

We may also mention here that we had the henelit of ascertaining the views of Dr. Edward Mcwhinneyv, the eminent constitutional lawyer, on the questionnaire. 'He took this opportunity since Dr. McWhinney* had recently come to India and could ﬁnd time to meet the Membcr--Secretary of the Commission, and to forward to the Commission his very valuable views on various questions contained in the questionnaire. As is well known, Dr. McW'hinney has made a special study of constittrtional adjudication and constitutional courts in the cornparativc perspective. 'We are grateful for the trouble he took.

It was also our good fortune to have with us Mr. Iusticc Alexander Fem of the Constitutional Court of Yugoslavia, who had recently come to New Delhi. Mr. lustice Fera was good enough to spend some time with the Members of the Commission and give them an idea of the composition and pattern of working of the Constitutional Court of Yugoslavia. Although, for want of time, it was not possible to request him to answer the queries Paragraph 1.2, mprrz.

Chapter 6. irtfra.

Questionnaire issued by the Law Comnussiou of India--See Appendix.

wt-« _-

3' contained in our questionnaire, we were happy to ﬁnd that he evinceti keen interest in some of the probients that have been sought to be dealt with in the qtlestionnztirc.

Of the questions raised in that Questionnaire, so_r_ne were concerned with the tnztchinery for eonstitutionztl adjudication, and the present Report has been prepared after keeping in View the replies received on the above qu_s~ tionnaire. Some of the irnportant points made in the replies to the ques- tionnaire will, in fact, be adverted to later,' at the appropriate place. The other issties raised in that questionnaire are outside the scope of this Report, which is confined to the question of creation of a Constitutionai Division within the Supreme Court.

1.8. It is needless to say that the present Report doee; not purport to dent with the totality of the jurisdiction of the Supreme Court, or with all the aspects of its procedure and mode of working. Its scope is :1 narrow one, as already explained?

Limited scope.

Lg. We lI1[l'_5«' ﬁnally 1'11C11iZi0l1 that in A subsequent Chapter, we are C0mp§Lra[iV'c dealing, in hrief, with the emnparative position regarding eonstitutionai '"'""""' zuijiidieation in a few selected countries.-' 1

2. 1-';1ra 1.2 In 1.5', .5'H]'.U'{l.

3 Chapter 5, r'rifi'tr.

CHAPTER 2 _ THE QUESTIONNAIRE AND REPLIES TH.ERETU Th'? Q"°5'l°'1"alT'3- 2.1. The Questionnaire that had been issued by tl1e Law Comrnission' elicited views, 2':n'er cilia', on the question whether there should he created a Constitutional Court to decide constitutional questions. The replies to the queslzionnairewthe majority of them--~do not favour the creation of a Constitutional Court. However, a large number of them have favoured the creation of a Coiirrizzrtional Division within the Supreme Court, or have made suggestions which substantially run on analogous lines. Replies to any questionnaire naturally do not spell out the details of the points made in the replies. But a shade of opinion does lend its broad support to the creation of a division to be entrusted exclusively with the determination of constitutional controversies, that reach tl1e Supreme Court?

Having regard to the opposition expressed strongly in certain quarters to the idea of creating a separate Court for dealing with constitutional issues, that idea has not been pursued in this Report. Also, the Commission is aware that arry such proposal would involve structural changes of a more extensive and complex character than those that would he necessitated by a proposal for creating, within the Supreme Court as structured at present, separate divisions for dealing with Constitutional and non-Constitutional matters.

In fact that a noticeable shade of opinion received in response to the questionnaire favours the idea of having such divisions is a consideration that weighed with the Commission in exploring the feasibility of creating such divisions (instead of creating a separate Court), and of examining the pros and cons of the matter.

Rep1i_es favourin 2.2. As already state} the idea of having .1 constitutional division fi'Eﬁ§:';1;l°£ig:?$ within the Supreme Court h.as found favour with several persons and bodies of the supreme that have responded to the questionnaire or with persons who have (though C0W"- not in the form of a formal communication to the Law Conunission) expres-

sed their views in the matter. They favour the creation of :1 "constitutional division" a constitutional "wing" or "branch". These include--

(a) one retired Supreme Court ]udge,'-

(h) two sitting Chief Iustices of High Courtsf (C) two siting High Courts ]udges;"

(d) one retired High Court ]'udge,7

(e) Law Department of one State,3 (ﬁt one M.L.A.,9 I. Para 1.7, supra.

1%-'gr _a.f1ist of those who have favoured the creation of such a division, see paragraph .. , U': ra. .

_I'J

3. Paragraph 2.1, supra.

4. Law Commission Collection, pages H2 and U3, [The Hindu, 3111 February. 1932).

5. Law Commission Collection, pages H83 and 1,' I43.

6. Law Commission Collection, pages H153 St l,ll54. {One of them suggests a. constitu-

tional bench of seven Judges).

7. Law Commission Collection, page U4. {The Hindu, Rth F'ebruar_v, I982].

3. Law Commission Collection, page ]_fl{i2.

9. Law Commission Collection, page H93.

(g) a distinguished economist,' (11) one academic lawyer?

(he would conﬁne the jurisdiction of the Supreme Court to consti- tutional matters and public interest litigation, with a permanent 5:726}: for each); .

one lawyers' association-' (it suggests the formation of a regular constitution Bench comprising the five seniormost judges, includ- ing the Chief Justice); '

(i) one Secretary of a Chamber of Commerce and Industry' (he suggests a Constitution Bench of not less than seven judges);

(It) a few Advocates?

(I) one subordinate judicial oﬁ'icer;"' (In) some other persons.' Some of the replies to the questionnaire have expressed an anxiety that the Supreme Court of India''' should continue to remain at the apex of the administration -of justice in India and that nothing should be done to affect the unity and integrity of the Supreme Court. We highly appreciate this concern, and would like to make it clear that the idea put forth in this Report is not intended to lower the status of the Supreme Court in any manner. Rather, the sole' object of the present inquiry is to suggest measures needed to maintain a high quality of disposal of judicial business. As will be seen from the detailed issues set out later,9 there is no question of making alterations in the Qualiﬁcations and modality of appointment of Supreme Court lodges, except such as are absolutely consequential on the creation of a separate division within the Supreme Court for constitutional matters."-'

(i) 2.4. We may also mention that the questionnaire issued by the commis-

sion, covering as it did a very wide ﬁeld," evoked, from a "r'Ci"'F.-' eminent member of the bar," the comment that the Law Commission ought not to go into the question of establishing a Constitutional Court in an inquiry relating to speedying up of legal proceedings.

The questionnaire further evoked the comment that since ordinary rerne-- dies are available for remedying the evils of delay, far-reaching amendments of our constitution ought not to be gone into. We value very highly this approach and appreciate the point of View that constitutional amendments ought not to be embarked upon lightly.

2.5. We should like to record at this stage that the principal object of the inquiry into the possible need for creating a constitutional division is not to suggest measures for reducing arrears." Of course, we do anticipate the creation of a constitutional division would, to some extent, help in reducing H10, Law Commission Collection, page U131, Law Commission Collection, page Law Commission Collection, page H139.

Law Commission Collection. page H153.

Law Commission Collection. pages no to H3, H93 to HHJO, ]_.'l21 and 11132. Law.Commission Collection, page U153.

Law Commission Collection, pages H9, H1], and U90. Law Conlmission Collection, page 1/18 (A sitting Chief Justic-1). Chapter 6, infra.

. Paragraph 6.3, infra.

. Chapter 1, supra.

12. 2-116 LADINDIB4 ':'a}°P°:J?'!-:'*s-ago...

Law Commission Cbllection, page H156 {Shri H. M. Seedvai).

Sorneclariﬁcationg with _i-efere-noe to polnts arising out of the questionnaire.

The question gf arrears.

Object In quiry, of the Constitutiona l Igounciljf feasible in Iucha.

Example drawn 6 arrears in the Supreme Court. However, the idea of a separate division in the Supreme Court has not been put forth with that end in view. The idea is, in essence, a response to tlhe realisation1 that constitutional adjudica- tions possess certain special features, which the judicial process must reflect in its structure and approach.

As regards constitutional amendment, while we are anxious that it should not be recommended as a matter of course, such an amendment seems unavoidable if the proposal for creating a constitutional division is to be implemented.' 2.6. In reply to our Questionnaire, there has been a suggestion for the creation of a Constitutional Council, as in France. A retired Judge of the Calcutta High Court has made this suggestion". However, on a careful consideration, this does not appear to be an idea that can be appropriately included in the Indian Consﬁtution. The composition and functions oi the French Constitutional Council,' as envisaged in the French Constitution, and its manner of operation, would hardly harmonies with the total constitutional pattern in India. France had to create this Council because the French Constitution does not contemplate the determina- tion of constitutional questions either by the hierarchy of ordinary courts culminating in the com' :2': Cessation, or by the hierarchy of administrative courts culminating in the Conrail J: Eur. The position in India is not analogous in this regard. Moreover, the range, depth and variety of constitu- tional matters5 that have arisen so tar in India, --- and may be expected to arise in future-----undcr the Constitution, would be far beyond the type of body represented by the French Constitutional Council.

2.7. By way of example of the nature of controversies which might arise from Section 9. under the Indian Constitution and which may not be quite appropriately Act, m"d";951§?""ia3° dealt with by a body constituted on the lines of the French Constitutional Council, we may refer to the question that has very recently arisen regarding the constitutional validity of a statutory provision --- such as, Section 9, Hindu Marriage Act, 1955»-pros-iding for the restitution of conjugal rights through a decree of the Court. Two High Courts-- Andhra Pradesh and Delhi-----have had to deal with the question so far, though they have arrived at different conclusions. We are not, in this Report, concerned with the merits of the controversy. The point to make is that such constitutional questions having a legal background (besides their social signiﬁcance) may not be appropriate for a Constitutional Council of the type that functions in F rancc.

1. Chapter 3, infra.

2. See Chapter 4. infra.

3. Law Commission Collection, page 1 £107.

4. See paragraphs 5.3 to 5.6 and 6.2, infra.

5. See paragraph 2.7, infra.

CHAPTER 3 CONSTITUTIONAL ADIUDICATION I. General observations : Important aspects of Constitutional adjudication 3.1. For the purpose of the present inquiry, it appears to be desirable to emphasise certain aspects of constitutional adjudication which might show the need for measures facilitating the evolution of a specialised approach, and for allowing adequate time for study and reflection.

3.2. By way of a general observation, it should be emphasised that. the adjudication of constitutional controversies by the highest court of the country occupies a place not enjoyed by the determination of other types of contro- versies. Woodrow Wilson's description of such a court as a "Constituent assembly continuously in session" deserves to be kept in mind, familiar as it is to students of constitutional law. Each generation, it has been said, writes its own constitutional principles (but far from always), through the decisions of the Supreme Court.' Mr. Justice Franl-tfurter's appellation--"a very special kind of court"3,--

' applies almost to every court entrusted with the function of deciding consti-

tutional questions.

3.3. Since, in constitutional adjudication, the Court is confronted with new and unprecedented controversies, the fashioning of rules to suit the new situations is obviously a diﬂienlt task. Holmes drew attention to this, by pointing out that the words of a constituent Act "have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters"3. Of the US. Supreme Court, it has been said that "the Court may be purseless and swordless, but its ability impor- tantly to inﬂuence the way the nation functions has proved great, and seems to be growing all the time."'' 3.4. In the light of these general observations, it may now be convenient to deal with certain special features which are either not found in non- constitutional adjudication, or, if found, are found only in a much lesser degree in nonconstitutional adjudication. Because of these pecularitics, some considerations become of special relevance to constitutional adjudica- tion. Uf these, We may mention, by way of illustration, four, namely,-

(i) Specialisation;

(ii) consistency:

(iii) evolution of constitutional jurisprudence as a body of doctrine, self-contained and coherent;

_ {iv} availability of adequate time.

Of course, the considerations enumerated above do not necessarily constitute independent or isolated categories. They dovetail into each other, and the reasons that support the several considerations may also dovetail into each other. However, it may 'be proper to examine them in some detail.

1. AS. Miller, Supreme Court : Myth and Reality, page 5_ 2- Ffankfllﬁﬁr. "The SuPl'Eme Court in the Mirror of Justice", (195?) 105, UPa Law, Rev. 78}, quoted by A.'S. Millar, Supreme Court : lvlyth and Reality, page 24.

3. Missouri V. Holland. ([920] 2.52 U.S. 416, 435.

4. John Hart Ely, Democracy and Distrust : A Theory of Judicial Review (1980), page 45.

Aspects of consti-

tptional adjudica-

Hon. Importance of ponstltutronal ad-

judlcatlﬂn.

_Role of Court In :1'-'velo_pment of _e-onstittmonal Jurisprudence.

Special features of_ constitutional adjudication.

II. Specialisation Special approach 3.5. Taking up the first consideration mcntioncd abovel, namely, specialisation, it is necessary to state that the most important aspect is thc need for special approach. Here, we would like to quote what was said by the famous economist Keynes, whose interests fat transcended the realm of economics. Describing the role of 't-he judge deciding a constitutional issue. Keynes said '. ' "He must contemplate the particular-. in terms of the abstract and (the) concrete in the same flight of thought. He must study the present in the light of the past, for the purposes of the future. No part of man's nature or his institutions must lie entirely outside his regard. He must be purposeful and disinterested in a simultaneous mood: as aloof and incorruptilole as an artist, yet sometimes as near the earth as a politician."

gigging 3.6. In the discharge of the onerous tasks of constitutional adjudication Court ofU.s.A. as outlined above, specialisation may help. Again, we have the example of the US. Supreme Court. The very fact of exercising judicial review for a period of more than a century and a half has given the U.S. Supreme Court a certain political conﬁdence and political srwoir fairs, and a certain con'Linu-- ing oral tradition of specialist judicial experience in the "constitutional handling and legal moderation" of great political came: cer'r!are.r, parti- cularly iv-hen these political causes ceieirrcr threaten to involve the judiciary:

in adverse relationships or power struggle with counteoprevailing executive or legislative authority} §;ew:om:mm¢Sjud£;'; 3.7. In '|'J.lS.A., two Supreme Court justices have urged the' develop- In U. S. a. meat of specialised courts as a way to deal with rising case loads.

Noting that Texas and Oklahoma divide civil and criminal appeals in their highest courts and that a number of states separate intermediate appellate courts. Chief Iustice Warren Burger said, "It is clear, therefore, that the concept of separate appellate jurisdiction is not an alien or subversive "Any move towards more use of specialised courts must be carefully thoughrout. But it must he thought about", he told those attending the Arthur T. Wanderbilt dinner in New York in November. He said that European countries had been using such courts. "widely and effectively" for centurics. Burger noted that. in the United States, most medical clinics and law ﬁrms assign patients or clients to doctors or lawyers with specialised, experience". If the advocates must be specialist", he asked, "can we wholly ignore the need for some specialisation in the judicial systems?"

A already stated'', Iustice Sandra Day O'Connor of the Supreme Court of U.S.A. (herself a former State Appellate ludge) would encourage specialisation. Speaking to the Council of Chief Justices of Courts of Appeal in Chicago, she said that she had found that the ﬁelds of crimi- nal law, probate, tax, domestic relations and administrative law were

1. Paragraph 3.4{i}, Supra.

2. J. M. Keynes, "Merno'I1'a1s of Alfred Marshall", reproduced in Fankfuter and Landis, The Business of the Supreme Court, page 318.

3. Mcwhinney. "Federal Supreme Courts and Constitutional Review" (1967) 45 Cau._Bar Rev. 578, 592, 593.

4. Report "Speciality Courts" in (January 19133} 69 A.B.AJ. 23.

particularly well suited for specialisation. When a judge has a particular expertise in an area or ﬁeld of law, the judge, she said, can prepare for hearings with less time and can resolve issues more quickly, and perha 5 better. At the same time, she added, "Most judges, including myself, pr er .

to maintain a diversity of subject matter jurisdiction".

III. Constitutional divisions in the Commonwealth and elsewhere 3.8. In Commonwealth jurisdiction, a Constitutional Division in the apex Court has not been created so far. Specialised divisions dealing with matters such as family law and adininistrative law have come to be establish- ed in several jurisdictions but not constitutional divisions.

3.9. Specialisation with reference to constitutional adjudication has been stressed elsewhere also. [11 regard to Canada, a writer pleading £01:

the establishment of a Constitutional Court, wrote some time ago as under :1 "All the arguments in favour of specialisation in these ﬁelds become even stronger when the interpretation of such a basic document as the Constitution is involved. It may be argued that this type of specialisation belongs to Continental Europe and is foreign to common law countries; but my point is that We should improve our Constitu- tion bj; adopting the Continental system. As a matter of fact, the Supreme Court of the United States has specialised itself in practice by concentrating almost exclusively on public law cases ............. .."

3.10. The reason why Constitutional Courts or divisions have not been seriously considered, could be the fact that public law, of which constitutional law and administrative law are the two most important branches, itself received recognition rather late in the day. No doubt, the State is a vary old institution. Disputes between. the State and its citizens, disputes concern-

ing the powers of the sovereign and the working of Governmental machi- nery, disputes concerning the inter--play of Government agencics--all matters that form the cone of constitutional law and administrative law--must have arisen in ancient times as well. Tihe unmatched original thinking of Plato about the State, the vast and comprehensive study made by Aristotle about "Constitutions", and the grand-kaleidosco e of statecr-aft and the science of government to be found in Kautilya, pro ably had their oounterparts in some great legal battles as well. But public law having a personality of its own is regarded more a product of the last ten decades or so, than a heritage of the past. This comparatively late emergence of public law accounts for the late emergence of tribunals s ecialising in that division of law. The rules did exist, and have existed or centuries. But they did not carry a label of their own, they did not have their individual appellations. Rules deﬁningthe liberties of citizens vi:-a-air the State were intermixed with ordinary rights and leberties of the citizen»-a point lucidljr expounded by Dicey. These rules rubbed shoulders with the prosaic rules of ordinary law, and could not be identiﬁed in a crowd.

This being the nature and content of rules of constitutional law, no urge was born to create a tribunal specialising in those rules.

Creation of constitutional divisions in the apex courts have not, there- fore, been seriously thought of in Commonwealth jurisdictions. Until recently, guarantees of fundamental rights were also almost non-existent in

1. Jacqui:-Yuan Morin, 43 Can. Eat Rev. 'S45, S49.

Constitutional chvisious in the Commonwealth.

Suggestions made in Canada .

Late emergence of public law.

No logical reason for present state of affairs.

Position in India.

Mcwhi nne-y's view.

No practical need, therefore, arose to major Commonwealth jurisdictions.

the violations of such think of a specialised division concerned with guarantees.

3.11. But there is no logical reason why this state of affairs should continue. Many Commonwealth Constitutions, particularly in the "new commonwealth," now entrench fundamental rights. Even earlier, questions of constitutional law, mostly arising from the division of powers between tl1e federation and the Units, have been familiar topics of litigation in many commonwealth countries. In India also, the Federal Court created under the Government of India Act, 1935, was pre--eminently concerned with constitutional issues. In course of time, no doubt, its jurisdiction came to be expanded because of political necessities, but it never lost its role as a constitutional tribunal in the federal sphere. T he need for specialisation in regard to Constitutional adjudication is the greater now, in view of the dill':-

rent and intricate questions that arise out of the provisions that elaborately entrcnch several fundamental rights. -

3.12. The Supreme Court of India, for historical reasons, came to be vested with a variety of jurisdictions. In the initial few years, attention was not focussed upon the importance of its role of constitutional adjudication.

No doubt, there were many constitiutional landmarks, a few ceases celcbres and some pronouncements that laid the foundations of important doctrines of constitutional law. But these came and went as meteors in the sky. They did not mark out the role of the Supreme Court as a constitutional tribunal. Constitutional controversies, floating on the stream of judicial business along with other disputes, did not stand out in the public eye or in the thinking of the profession; they were regarded as merely one species of the manifold jurisdiction of the Court.

The picture is diﬂerent now. Constitutional jurisprudence is being built up gradually. Now that constitutional adjudication has taken firm roots in India (according to some persons, it even ovcrshadows ordinary litigation), it is appropriate to take stock of the situation and to spare some time for considering its special demands.

3.13. A distinguished writer1 on public law has this to say about the machinery of judicial review of unconstitutional acts as adopted in the newly independent and self-governing countries of South East Asia and Africa :---

"Thc Inain_constitutional stereotypes for judicial review have, upto date, been derived from the English--speal-ting countries whose public law systems,-'-

whether involving a presidential--exccutivc and formal separation of powers _ on the American model, or else a parliamentaryiexecutive, on the English and general Commonwealth model---lhave all rested on an essentially common law legal base involving, at least the common law derived notions of precedents, case law, and judicial reasoning. We have tended, in the Commonwealth countries at least, to ignore the advantage of judicial expertise, in terms either of specialist Supreme Courts or else of specialist hence within Supreme Courts whose jurisdiction is limited by subject--matter--forgetting that, for all practical purposes since the reforms effected by the judiciary Act of 19:25, the United States Supreme Court has become a specialist public law or constitutional tribunal."

In regard to the United States, Mr. Iustice Frankfurter acknowledged this fact when he saidf "Issues of public law, then, constitute the stuﬂ of 1, Mcwhinnoy, Judicial Review {I969}, page 2.35. Frankfurter in (1928) 42 Harv, Law Rev. 18. j ") II Supreme Court litigation". "We have", Chief Iustice Warren Burger' said "a great Cqurt s_r,-stem in the United States, but it.is not perfect. The Com--

mission should look at the Court system of every other large highly industria-

lised country to see whether we could learn something from them".

Chief Iustice Warren Burger went on further, to add :

"1~'rano.=:, for one, has a niiieanemher Constitutional Council that resolves only constitutional questions. Another French court is the court of last resort for all administrative matters, and there's another "court for everything else. In effect, they have three Supreme Courts. and that is :1 fairly common pattern throughout Europe, from Sweden on the north down to Italy".

3.14. At this stage, it would be appropriate to mention that Chief Justice Warren Burger, while suggesting the creation of a Commission to look into the problem of case load in the Supreme Court, has further suggested that the Commission (if and when constituted in that country) could also take note of the fact that most European countries have, in effect, two or three courts of last resort, rather than only one such court.'--9 3.15. The aspect of specialisation is also illustrated by the Constitutional Courts created in several Continental countries.3 A striking example of a specialised court is the West German Constitutional Court, which is pre- etnincntly concerned with constitutional law and certain types of disputes involving issues of administrative law.' Other disputes are dealt with by separate specialised agencies, there being separate Supreme Courts for Administrative Law, Labour Law, Social matters and Taxation Law.

IV. The issues in constitutional adjudication 3.16. A few words now about the nature of issues in constitutional adjudication. Morris Cohen has described these issues:--

"We cannot pretend that the Supreme Court is simply a court of law. Actually the issues before it generally depend on the determination of all sorts of facts and their consequences, and the Values we are at clung to these consequences. These are questions of economics, po itics and Social policies which legal training cannot solve, unless law includes all the social knowledge."5 Speaking of the U.S. Supreme Court, Robert H. Iackson said, "nor can it (the Supreme Court of America) be regarded merely as another law court. The court's place in the constitution was determined by principles drawn from philosophy broader than mere law".' laclrson also quoted the observations of Cardozo to the following effect: It (the New York Court of Appeals) is a great common law court; its problems are lawyer's problems. But the Supreme Court is occupied "Quality of Justice" (record of an interview) (October 1983) SPAN pages 35-33,

1. 2- tpnftrl:-a question whether a Constitutional amendment would be necessary, sec para,

3. Chapter 5, infra.

4- mplgugi, Constitution of the _Federal Republic of Germany. See paragraphs 5.? to

5. Morris Cohan, Reason' and Law (1950), 133335 73-74.

6. Jackson, The Supreme Court in the American System of Gown-nmant (1955), pay: 3 Chief Justice Warren Burgeﬂs suggesflon The gierrnan Con-

stitutional court Wide. scope or questions views of Oohemlackson and Frankfurter.

The aspect of choice .

MeClos.kcy"s view-

Nature of the cases that reach the Supreme Court.

chieﬂy with statutory construction---Which no man can make interesting------ and with politics, but Jackson added "of course, he (Cardozo) used politics in no sense of partisanship but in the sense of policy-making'?

Iustice Frankfurter has also 'said---"Let us face the fact that live Iusticcs of the Supreme Court are rnoulders of policy, rather than impersonal vehicles of revealed truth."

"People have been taught to believe that when the Supreme Court speaks, it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily balicvc that is what the country needs most to understand."

V. The Element of Choice

3.ry. The burden of the constitutional judge is thus a licavy one. One important circumstance accounting for this heavy burden of the judge is that constitutional cases usually involve a choice. This itself is primarily due to two reasons. In the first place, some provisions of the Constitution are (by sheer necessity) stated in wide or ambiguous terms. To decide what they mean in the circumstances of the particular cases involves a choice between competing values. Secondly, some of the critical phrases occurring in the Constitution cannot be intelligently understood or given shape without a substantial injection of content from some source beyond the language and the discovcrabl-e intention of those who wrote it. In constitutional adjudi- cation, the choice is not between parties as such, but between goals.

As has been observed : "There is no objectivity in constitutional law, because there are no absolutcs". Every constitutional question involves a wei- ghing of competing values. Some of these values are held by virtually every- one, others' by fewer people. Supreme Court justices likewise hold values. "The more widely held are the values in society, the more likely the Supreme Court will held them, the more controversial the values, the Supreme Court is divided over them.''3 3.18. Robert G. McClosltcy has stated about the U.S. Supreme Court as under'.-

"For more than half a century scholars and judges have been repudiating the mythology that the court is merely the impersonal voice of indisputable constitutional varieties and have been emphasiz- ing that the judicial process involves an element of choice based on policy judgements."

3.19. In the present context, the nature of the cases that reach the Supreme Court should also be emphasised. Cases which reach the Supreme Court are "no law" case-s----pathol 'cal or "trouble" cases. Generally speaking, a matter reaches the highest court precisely because no readily available rule of law disposes of the issue satisfactorily. Frequently, there is no pre---existing law waiting to be covered. The court must then make its own law by balancing the competing interests.

Jackson, The Struggle for Judicial Supremacy (1955), page 54. M. Iignﬁdman {ed}. Roosevelt & Franltfurter: Their Correspondence 1928-1945 (IBM), page .

3. Leonalrgi? W. Levy (Eda, Judicial Review and the Supreme Court: Se-Iected Essays, Pagﬂ -

4. Robert G. McC1oakcv, The Modern Supreme Court, page 298.

I22!--

3.20. It is also admitted that constitutional adjudication imposes a difficult task upon the judge. He must examine the present issue, assimilate the past experience and transcend both the past and the present, in order to project himself into the future.

It is obvious that the magnitude and variety of tasks described above demands proper mental equipment. Learned Hand's description of the mental equipment demanded of a Iudge cannot be bettcred:--

"I venture to believe that it is as important to a Judge called upon to pass on a question of constitutional law to have at least a bowing acquaintance with Acton and Maitland, with Thuc},-dides, Gibbon and Carlyle. with Homer, Dante, Shakespeare and Milton, with Machia- velli Montaigne, and Rabalais, with Plato, Bacon, Home and Kant, as with the books which have been speciﬁcally written on the subject. For, in such matters, ever}-'thing turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather ﬁgs of thistles, nor supply institutions from judges whose Outlook is limited by parish or class. They (the judges) must be aware that there are before them more than verbal problems; more than ﬁnal solutions cast in generalizations of universal applicability. Thcv must be aware of the changing special tensions in ever}; society which make it an "organism". which demand new schemata of adaptation; which will disrupt it if rigidly conﬁned".' 3.21. Incidentally, it may be proper to mention that the need for a broad outlook in constitutional matters was emphasised by Lord Haldane also in the Privy Council? He pointed out that in selecting the. iudges of the Iudicial Committee attention had been paid to certain factors, in which he included the need for "training calculated to give what is called the statesmanlike outlook to the Iudge."

V. Consistency 3.22. The second aspect of constitutional adjudication that needs emphasis is consistency. Desirable in every species of adjudication. this is particularly so in the case of constitutional adjudication. It is not necessary to repeat all that has been said in the preccdinrr paragraph about the importance and impact of constitutional adjudication. Consistency in such mattersis of particular importance, because the judgment once pronounced will regulate the working of the State and its numerous agencies and affect the rights and duties of citizens, for years to come.

3.23. It should, of course, be made clear that when one speaks of "consistency" in such a context. one does not imply that there should be a blind and dogmatic adherence to precedcnt.3 it is not necessary to discuss for this purpose, the desirability or otherwise of recognising, in any court, a power to overrule its precedents. "Consistency" here means that a decision rendered in the past, and the approach underli.-ing the past decision, should be pondered over by the court when deciding a case wherein that approach may have some relevance. Whether to follow it or not. will be a matter to be decided in each individual case, but the court must be at least conscious of the past decision. This task of the court can be more adequately dis- charged when there is functioning :1 specialised division, devoted er<;clusivel},r to constitutional questions.

I. Learned Hand, The Spirit of liberty, page 53. Lord Haldane in I Cantbr-idge_Law Journal, 148. See also paragraph 3.29, infra, 3--1lﬁ LADfNDf84

3. task of the j uclgt. find the requisite mental equipment.

The Lord Ha1dane's observations' as to adjudication In the Privy Counc|l-

Consistency adjtidicatlon.

Meaing of "Consistency".

Role court.

of the The ultimate "spoke5_n'ia n".

Expoamding , of vague gene['allIl¢5_ Ljiiscreiion disciplined by system.

Shapiro's _ VIEW on consistency.

3.24. In such controversies, the role of the Court is that ot articulating a broad norm which fits the facts of the dispute before it and also traiiseends that particular dispute. In this process, the Court is aci:in§_ as a national conscience for the people of India, and not merely as an at itpr of 1ns1gni-- ﬁcant disputes. A standard comes to be erected towards which men and governments can aspire. To the extent to which CO11fr0V'CT5iCS' reach_the court, it could help articulate, in broad principle, the goals of Indian_soc_1etji. Viewed from this angle, the effects of a given decision, in constitutional law assume great importance. It is for this reason that judges should have adequate materials placed before them, adequate time available to them and, of course, adequate resources at their disposal. More than all this, it IS iniportant that they are enabled to develop the broad approach demanded in constitutional adjudication.

3.25. In constitutional cases, the Supreme Court; possesses a broad freedom to do as it wishes. But in exercising that freedom it must not create too much confusion.' The Supreme Court is the ultimate spokesman in the judicial hierarchy, and the lesser spokesman must pay heed. If the Supreme Court pursues policies which lesser spokesmen using the same techniques which the Supreme Court uses, can twist into opposites, the Supreme Court vitiates its own influence. This may very well be the most effective limitation on the Supreme Court's power. Every word of the Court must be set down with an eye to its meaning in the future in similar situations, in analogous situa- tions, even in irrelevant situations.

3.26. Sam Ervin Ir. emphasised the role of the Court as expounding "vagi1e gener:.1l'ities" of the constitution, in these words :»-~-

the "Hundreds, thousands of cases are required to give the phrase a grow- ing content, but the constitution sets the tone. If it were to be specific. it could not bea Constitution nor hope to maintain a theory and frame- work of government with. general powers and liinitationsf'?

3.27. No one has expressed the limitations of the judicial role more beautifull than ustice Cardozo who after acknowledrrin that "the eat it' a D g tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges idly by, " wisely explained that -.i iudge "is not to innovate at pleasure. He is not a kiiighberraiit, roaming at will in pursuit of his own ideal' of heaut'_v_.r or of goodness._ He is to draw his inspiration from consecrated principles. He is not to yield to spastnodiic sentiment, to vague and unregu atcd heiicvolence. He is to exercise a iliscrerion informed by tradition, methodized by analogy disciplined by system, and subordinated to 'the primordial necessity of order in the social life' "

c 3.28. Professor Shapiro has dealt with another aspect of consistency n these VV0I'(lS,3 while describing the role of the judge:

I "In other words, his chief concern should not be whether or not a ,9,-iveii decision will for the: next twenty years facilitate or hinder the rise of the Negro to a position of equality; it should be whether the Robert A. Dahl, "Decision-making in 3. Democracy" in Low (Ed). Judicial Review and the Supreme Court 179.

Sam I. Ervin }r., Role of the Supreme Court : Policy Maker or Adiudicator? page 24. Martin Shapiro, Law and Politices in the Supreme Court, page 18, 15 standard of equality he enunciates today will, in the "next twenty years support him in the path of logic and consistency or lead him into the temptation of irrationality. Is the standard he enunciates today sufficiently general and rational to be applicable to the cases that will come before him rornorrow?".

3.29. The emphasis placed above on the aspect of consistency' does not mean that there should be no new developments in constitutional adjudi- cation. However, it is important to note the precept that "the court is to decide not by what is good, or just or wise, but according to law, according to a continuity of principle found in the words of the constitution, judicial precedents, traditional understanding and like sources of law"?

It would, thus, seem that the Court -has to maintain a balance between stability and change,---an aspect frequently emphasised. This aspect assumes importance because, to quote Williarn Hurst,' "when you are talking about constitutional law, you are talking about the balance of power in the community and the question of how you find meaning boils down completely here to who ﬁnds the mean ing".3 Two opposites have to be reconciled by the judicial process----- stability and certainty. This may be true of other ﬁelds of life also. As Whitehead' has observed: "There are two principles inherent in the very nature of things recurring in some particular embodiments, whatever ﬁeld we explore---the spirit of change and the spirit of conservation. There can be nothing real without both. Mere change without conservation is a passage from nothing to nothing. Its ﬁnal integration yields mere transient, non- entity. Mere conservation without change cannot conserve. For after all, there isja Flux of circumstances and the freshness of being evaporates under mere repetition."

330. In ensuring consistency. the above aspect will naturally be borne in mind. As has been said: "Surely decision should not go in a speciﬁc case, nor should special constitutional preference be given to the rich man, or the white man, or the protestant man, or the poor man, or the insurance company, or the labour union, or the black man, or the Quaker or the witness -- unless one can fairly say that the Constitution grantetl such a preference"?

VII. Evolution of constitutional jurisprudence 3.11. The third consideration to which attention may be usefully drawn is the need for systematic evolution of constitutional jurisprudence. lr is desirable that such jurisprudence should be allowed to evolve as a self- eontained and coherent body of doctrine, emerging from judicial decisions rendered with that deep knowledge of, and familiarity with, constitutional law that could more easily come from constant contact with work of a specialised character.

1. See paragraph 2.23, supra.

2. Archibald Cox, The Warren Courit--Constitutional Decision as an Instrument of Re- form. Page 21.

3. William Hurst, quoted by Raoul Berger. Government by Judiciary : The transforma-

-tion of the Fourteenth Amendment (1977), page 369.

4. A. W. 'Whitehead. Science and the Modem World (1925), page 231 .

Iif'J)gl§UI:i¢5I'k;.;I(;ua::S£).;nv: Sgt: Current Constitutional Controversy" (1960-61) Stability and change.

Importance of consistency.

Constitutional jurisprudence.

Differences ordinary law.

Timg Complexity the issues.

Analysis requires time.

Collective judgments.

from ' of 16 3.32. Constitutional law does not have the simplicity of ordinary law--- a ooint that has been already made while stressing the need for specialisation.' At the same time, its very tendency towards complexity renders it desirable that there should be an awareness of the need to evolve a coherent body of doctrine.

VIII. Time 3.33. The fourth and last consideration of special interest to constitu- tional adjudication is that of time. It is exiornatic that anything which requires serious reflection, require time. One beneﬁt that would result from creating a special division of the Supreme Court relates to this aspect.

Time is of great importance, having regard to several factors:

(1) the gravity and compleititv of the issues involved;

(2) the impact that an adjudication of a constitutional issue in a parti-

cular direction may possibly have on the future course of public law: and (3) the nature and volume of materials that may be needed by the Court. for arriving at a proper conclusion, on constitutional issues.

3.34. As society hecornesicomplex, the issues that come up for consti- tutional adjudication will also tend to become complex. The Court may become immersed in the "travail of society'U--a phrase aptly used by Pekelis.2 This means that much more will he demanded of the law, because the public expects much more of it.

ludges should therefore have adequate time and ease of mind for research, reflection and consideration. In reaching judgements, they need time for critical review when draft judgements are prepared: and theyneed further time for clariﬁcation and revision in the light of all that has gone before. In one of his discenting judgements, Mr. Insticc Frankfurter said, "'I"l1c fanrcaching and delicate problems that call for the ultimate judgement of the n:1t.ion's highest tribunal require vigour of thought and high cfioit and their conservation, even for the ablcst of Iudgesf"

3.35. Time is required not only for the primary task of analysing in detail the materials on which the Court relies. It is cquall r tequired for adequate reflection upon the meaning of those rnaterials anti their hearing on the issues now before the Court. Reflection is a slow process: wisdom. like good wine, requires maturing.

3.36. Moreover, the judgements of the highest Court are collective judgements. They are neither solo performances, not debates between two sides, each of which has its mind quickly made up and then closed. The judgments pre-suppose full consideration and re-consideration by all. of the reasoned views of each. "Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussions; without adequate discussion, there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its for- mulation in learned and impressive opinion5.""

1. Paragraphs 3.5 to 3.7, supra.

Alexander Pekelis. "The case for a jurisprudence of welfare" in Konvita (Ed.), Law and S1o'e5ial Action 1, 40. cited by AS. Miller, Supreme Court : Myth and Reality. page .

3. Dick v N. 1'.. Life r':t.r.. Co.. (1959) US. 437; 3 L.Ed. End 935. 943. disoentingl.

Dick v. Y. Life .r'rr.r. C'o.. (1959) 3 L.Ed. 243 935. 949. See also Schubert. Constitu- tional Policies. pages 149-150.

{Frankfurter J.

1'?

3.37. Alexander Bicltel has pointed out that jud' es have, or should have, the leisure, the training, and the inclination to fo low the ways of the scholar in pursuing the ends of Government. Reason alone cannot tell you anything: it can only connect premises to conclusions. To mean anything, therefore, the reference has to be somewhat richer, to involve the invocation of premises along with the way one reasons Erom them. The basic idea thus seems to be that moral philosophy is what constitutional law is properly about; that there exists a correct way utilising such philosophy: and that judges are better than others at identifying and engaging in it.

Griswold' has also stressed the need for leizure in these words :----«» "I have never Written an opinion for a court; but I have tried my hand at writing articles and briefs, as well as examination questions, and I know something about the way legal thought develops in one's mind and the problerns and difficulties, the grouping and frustration, the striving for clarity and exactitude, and ﬁnally, the sheer labour of English composition involved in written legal wor ".

The need for the availability of adequate time for a court of last resort has been lucidly stressed by Sr. Edward Mcwhinney who was good enough to give us the beneﬁt of his views on our questionnaire? This is what he says while addressing himself to ques'£ion 3 :--

"A final appellate tribunal can only function effectively when it has enough time properly to consider, research and decide those cases that do come to it. Some form of discretionary control by a court over the size of its workload and the number of cases coming to it seems an indispensable and necessary part of the ﬁnal appellate tribunal function. The implication is that such ﬁnal tribunal must have an ' adequate advance screening procedure as to its cases, and thereby have full discretionary power to accept, or to decline to take, matters accord» ing to a preliminary conclusion as to their relative public importance. A ﬁnal appellate tribunal must itself be judged, in the end, not by the sheer quantity of cases it decides, but by their constitu1;ional--legaI weight and signiﬁcance."

VIII. The beneﬁts summed up 3.38. It is well--known that between a particular event and a mrson to whom the event happens. the nature and intensity of the reaction depends not merely on the event, but also on 'ﬁhilt the person experiencing the event puts into it. This is, of course, eminently true of an emotional experience; but, in a large degree, it is also true of most intellectual activity. In order that the judge ma be time. He should have e beneﬁts resulting from specialisation. He should have an eye for consistency, and yet a desire to avoid rigidity. The pressures of the overall volume of judicial work may not permit a meagura. ble increase in these respects for individual judges. But it may be desirable to ensure, at least, that the institution as a whole is best organised.

3.39. As has been said, greatness in the law is not a standardised quality; nor are the elements, that combine to attain i t, " .... .. greatness may manifest itself through the power of penetrating analysis exerted by a tren- chant mind, as in the case of Bradley; it may be due to persistence in a L Erwin W. Griswold. "Supreme Court--I97-'9 Team: I-'orwacIrI"' Law Review at pages 83-84.

2.' See paraﬂfaph 1.7. supra.

{I960-oi) T-'4 Harvard Need for lﬁisurc-~ Vews of Biekel and Griswold.

The experience of an event.

able to give his best, he should have enough ' Factor: accounting for the greatness in law.

Creating a climate.

Demands of the judicial pr0c65S "1 18' point of view forcefully expressed over a long judicial stretch, as shown Field; it may derive from a coherent judicial philosophy, expressed wit pungency and brilliances, re--inforced by the Zeitgeist, which, in good part, was itself a reflection of that philosophy, as was true of Holmes; it may be acltieved by the "resourceful deployment of vast experience and an originat- ing mind, as illustrated by Brandeis, it may result from the inﬂuence of a singularly endearing personality in the service of sweet reason, as cardozo proves; it may come through the kind of vigour that exerts moral? authority over others, as embodied in Hughes?"

3.40. No reforms in structure can bring into existence these qualities, where they do not exist. But the r can help in the creation of a climate which wil make them blossom, w ere they exist i.n the seed.

3.41. Our emphasis on certain aspects of constitutional adjudication regard mordinm, should not be understood as, In any manner, attributing a lesser importance law.

to the adjudication of questions of ordinary law. Nor is the preceding discussion to be taken as implying that the aspects detailed above do not have their importance in the determination of ordiary legal issues. Specia- lisation may become desirable even in some branches of non--constitutional law. Consistency in adjudication and the evolution of a coherent body of doctrine have their importance in several ﬁelds of non-constitutional law (e.g. commercial law). .*'sga;in, social wisdom and an ability to project oneself into the future are qualities highly to be prized in any area where the law is not yet codiﬁed (e.g. the law of torts) or where the law, though codiﬁed, must leave a wide discretion to the judge (e.g. the grant of appropriate relief in matrimonial causes, or sentencing in crimi- nal law.) It is also not to be overlooked that the element of choice, to which we have made a reference above while discussing the salient 'features of constitutional law, may be a crucial factor in many cases of first impression, including cases involving the interpretation of a statutory provision. The literature of the law is replete with landmark decisions where the question being of the first impression, the decision could have gone one way or the other without violating the traditional norms of judicial law--makin~r. The judges, it has been said, are gatekeepers of the status quo. Outside the gates, a host of horses are galloping on the outskirts. But each must l:ll'S[ win its spurs. It is, then, the judge who decides which horse won its spurs. This is true of judicial law-making in the sphere of ordinary law, as it is of constitutional adjudication. We are not unaware of this reality, and have no intention of under-rating the importance of the questions of non-constitu- tional law. But, at the same time, as we have pointed out, the decision of a constitutional question may have far--rcaching repercussions, both in point . of time and in point of space. Besides this, an expounding oi the Constitu- tion is an eapounding of the basic document of society, of a law which is fundamental. of principles which are paramount to those of ordinary law. This "higher law" status of constitutional law renders it desirable that the aspects of specialisation, consistency, evolution of a coherent doctrine and time for rcﬂection and mature collective judgment, should be given special attention in constitutional adjudication, because, in such adjudication, they are more eminently needed than everywhere else.

.1. V:"%:lt?1égF. Murphy and KC. Harman Pritchstt-,i (ﬁourta, Judges, Policies (2nd ed.}, page:

enarrsa 4 AMENDMENT or THE consrrruriou

4.1. We should mention at this stage that it ultimately, the proposal for the! creation of a Constitutional Division within the Supreme Court is favoured, it may need amendment of the Constitution in certain respects. It will be convenient to set out very briefly the constitutional position in this regard. Under article 245(1) of the Constitution, P'arl=iaIt1t:nt has exclusive power to make laws withrespect to the matters enumerated i.n the Union List. Entry 77 of the Union List reads as under:--

"77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein, persons entitled to practice before the Supreme Court."

4.2. The proposal for a Constitutional Division of the Supreme Court. really consists of two parts. In the first place, it contemplates the creation of a permanent division dealing exclusively with constitutional questions, and another permanent division. dealing with non--constitutional matters. Secondly, judges appointed to the Supreme Court would, from the very beginning, be appointed to a particular division.

The first part of the proposal may be said primarily to regulate the "constitution and organisanon of the Supreme Court", a subject falling within Union List entry 77 and can be implemented by ordinary legislation enacted under that entry.' Legislation creating a Constitutional Division within the Supreme Court would, prima facie, be supplementing article 124(1) of the Constitution, dealing with the establishment and constLituti.on of the Supreme Court, but would not conflict with any of its express provisions. Again, article 145(3) of the Constitution (minimum number of Judges for deciding constitutional qtgestions to be ﬁxed) can still continue to be compiled with, under the new sc eme.

4.3. We must, however, note that in respect of a proposal that is being mooted in the United States for (inter alia) bifurcating the Supreme Court of that country, Chief Iustice 'Warren Burger seems to have expressed the view that an amendment of the Constitution, may be required. A question and answer session with the Chief Iustsice has been recorded, and the record rcproilucfd, in the Span magazine." The suggestion that was under discussion was that a Commission be created to look into the problem of the quality of justice in the Supreme Court, havin regard to its heavily increasing workload. A point put forth by the Chic Justice was that even without waiting for a commission report, congress should set up a special temporary panel made up of about 26 judges, drawn from the circuit judges and seven member panels of those 26 should take some of the cases that would be otherwise heard by the Supreme Court. The panels should at least hear cases involving conﬂicting rulings by circuit courts. The rulings of the panel could be reviewed by the Supreme Court. The Chief Justice had also drawn attention to the fact that some countries had different apex I. For the text of entry 7?, see para 4.1, supra.

2. "The Quality of Justice" [record of an interview Oct. 1983), Span, 35, 36.

3. See also para 3.14, supra.

Constitutional Divisi-on--Necd for Constitutional amendment.

Proposal in two parts: Constitu-

tional aspeet of the first Part View of Chic!' Justice Burger of the Amerjgan Supreme Court.

courts for diﬂereizr type; of cases. The question whether these proposals may involve constitutional amendmentwas then raised and the following is an extract of the questions and answersrelevant to this po1nt:--

"Q. Would a constitutional amendment be needed to' make drastic changes in our appellate procedure?

Ans. Creation of a new inte.rmediate_ court under the Supreme Court would not require such an amendment nor would this temporary panel.

Q. What about setting up two or three Supreme Courts?

Ans. A great many judges, lawyers and legal scholars would be sure to think (that) it required a constitutional amendment, because there is a widely accepted view that Article III of the constitu- tion, which says there shall be "one Supreme Court", means that the Supreme Court cannot sit in divisions or panels. Creat- ing several Supreme Courts would be a drastic solution, but the Commission should consider all the options."

The point had, earlier, been dealt with also by Earl 'Warren in the context of the proposal for creating a National Court of Appeals. Here. is the relevant passage from an article' in the Iournal of American Bar Association.' "To restate the problem more precisely the question is whether the Article III mandate that there be but "one Supreme Court"

is violated by the proposed division between the National Courts of Appeals and the Supreme Court of the exercise of the eertiorari jurisdiction that has been vested only in the Supreme Court. When the jurisdiction of the Supreme Court is exercised by two courts have we not created two Supreme Courts in contravention of this Constitutional limitation?"

_ _ 4.4. The second part of the proposal for creating a constitutional divi- Efpneséttlluglpnalthc sion, contemplates that from the very beginning judges shall be appointed second parts ofrhe to a particular division. This would involve an amendment of the Consti» 1"°1'°5"l' nation. This is for the reason that the scheme elaborated in this Report contemplates that the appointment shall be made Evy tire President (and not merely an assignment by the Chief Iustice of India). Obviously, this cannot be managed by rules made within the framework of article 145(2) of the Constitution, which reads as under:--

"(2) Subject to the provisions of ................ .. clause (3), rules made under this article may ﬁx the minimum number of judges who are to sit for any purpose, and may provide for the powers of single judges and Division Courts." A Thus, an amendment of the Constitution would become necessary, for achieving the purpose mentioned above. Ordinary legislation or statutory rules would not be adequate for the purpose.

4.5. Further, since article 124 of the Constitution is at issue and since Ratiﬁcation by that article occurs in Chapter 4 of Part V of the Constitution (Union luClici- Sla'°S' ary), it follows that besides complying with the procedure prescribed in article 363(2), main paragraph (approval by a majority of the total member- ship of each House and a majority of not less than two-thirds of the members oi each House present and voting), there will also have to bc mmpljancc with the prorxiro to article 368(2) (ratification by the Lzgirfaturer of not less than one half of the States). Tllatproviso applies to Chapter 4 of Part V (Union Iurliciary).

l. ([973] A.B.AJ., 721-730. at 729.

4.6. Finally, more is the question whether a pro osal for creating a Basic feature it constitutional division would affect a basic feature 0 the Constitution. "ﬂe"""'d' Iudicial review is generally regarded as a basic feature of the constitution and an attempt to take it away or to restrict it would be futile. But an organisational change of the nature under consideration does not substantially cut down judicial review, and may not therefore affect any basic feature of the Constitution.

4.7. While amending the Constitution for the purpose mentioned E:_i:1;¢°:l::'m.a,3"d above,' it may also be necessary, in such an amendment, to provide for ,,,(,..,,-,.'i,,,.,;_ several connected matters. The amendment should provide, or empower Parliament to make a law which will provide, for several consequential matters, including a provision empowering Parliament to regulate, by ordinary legislation, matters of detail arising out of the creation of two divisions of the Supreme Court. Besides the above, certain matters of detail pertaining to the proposed Constitutional Division will also have to be dealt with. 'These are discussed in a later Chapter of this Report?

1. Paragraphs 4.4 to 4.6, supra.

See: also paragraph 6.7-', infra.

2. Chapter 6. infra.

Constitutional Court.

Austria.

France the French Constitutional Council.

The Cassatlon France.

_Cour_ Ill dc CHAPTER 5 C(}1'~»IS'I'ITU'l'IO.'~IAL COURTS on THE cormnnrrr 5.1. The idea of a Constitutional Court is not something new. Some of the cmitinental countries l1a\.'e these courts and as such it was in the con- text of these examples the Questionnaire was issued. The continental ex- perience proviclcs enough jnstiﬁcatinn for 'cmharking on this study for which the Questionnaire was isstied.

Before we proceed to make our recontniendations, it may be of interest to have a look at tl1e Courts functioning on the Continent, under the title of "Constitutional Courts". Of course, even outside the continent, constitu- tional adjudication is a familiar phenomenon. The Supreme Court of U.S.A. which is pre--emincntl}' a constitutional tribunal, is an outstanding example. However, for the present purpose, courts titled as "Constitutional Courts"

are oi special interest.

5.2. Constitutional Courts exist in a number of countries on the Con- tinent. xltlphabetically, one can begin with Austria.' The Constitutional Court of Austria has a very: wide iurisdiction. It not only decides constitu- tional issues. which are set out in detail in Austrian Constitution. but has, in addition, one interesting species of jurisdiction. The Constitution ot Atistria provides {in article 145) as under :--

"I45. The (loiistitutional Court (of Austria) shall pronounce judgment upon violations of International Law in accordance with the provisions of a special Federal Law".

The Constitutional Court in Austria consists of :1 Presuidcnt. :1 Vice-

Presidcnt, twelve other members and six "su'nstitutc" .meml:iers.1 5.3. France has a Constitutional Council, but not a Constitutional Court. How far this Council is akin to traditional courts as known to the common law world is highl}-' debatable. In a sense. the French Constitutional Council stands in a czttcgory by itself?

The French Cons=.ti_tution has authorised the Consntutional Council to pronounce on the conforinit}-' of a statute with the Constitution. The Inaterial portion of the relevant article of the French Constitution reads as under' :n~--e "Gt. Organic laws, before their' proriznigatiorzy. and regtilatioiis of the Parliamentary Assemblies. Ezefore they come into operotioixi, must be submitted to the Constitutional Council. whicli shall rule on their constitutionality . . . . . ."

No doubt, the jurisdiction of the Constitutional Council was enlarged later? But even so, the French Constitutional Council is hardly an :,malo_qo11$ of the Suprennr Court of India or of the Supreme Court of U.S.A. 5.4. The highe~t court in the French legal. systeni in the itldicial order is the Com' tic Comzzion. The court dates bacl; to the revolution, being t.'S'EalJllSl't<i(.l by the Law of '.\'o\-'ember 27. 179:». Its organis.:itio_r1 was ﬁxed in; the Lawiof tSr»o, The court sits in Chambers and in 1.tj;<3;.-'_. on the Articles 13?-148, Constitution of Austria.

.-krtiele 1470). Constitution of Austria.

Edward Mcwhinnej.-, Book Review in Summer ([98]) Vol. 29 No. 3 A.l.C.L. 535, 536. Article 61, Fteneh Constitution.

See para 5.5, infra.

uu.h.-..z|JI_---

22 23

occasion of the latest reorganisation of the court, a "mixed chamber" was created. Article 3 of the latest Law (so far as is material) reads as under :--

"Decisions of the Court of Cessation are rendered by one of its chambers, or by a mixed chamber or by its plenary assembly".

Article 1.1. of the latest law provides for occasions when a mixed chamber may be called into being--as where the case raises a question of principle or the question normally falls within the jurisdiction of several chambers, or the solution of the question might be the cause of inconsistency of judgments. Hearing before a mixed chamber is rnrandatorjr in several situations, for example, when the procurour general requests such hearing or the First President of the Counseil d' Etat orders it. A hearing of the mixed chamber is presided over by the First President, and the Board normally includes the Presidents and a senior judge and two other judges of several chambers. When the court sits as a mixed chamber, the procurour general must address it.' 5.5. In its composition and membership, the French Constitutional Council, is not a judicial or even a strictly legal body. It has nine members, a third of whom are nominated by the President of the Republic, :1 third by the Speaker of the Lower House of Parliament and a third by the Presiding Oﬁicer of the Senate? Its jurisdiction was enlarged in 1974, so as to permit any group of 60 members of the Lower House of Parliament or 6o Senators to seize the Council of a constitutional question, there is, therefore, an emer- ging tendency3 for the French Constitutional Council to proceed to the control of execution policy-making by passing on the compatibility or other- wise of projects of legislation with more general constitutional questions.

In this category fall--

(a) the ruling of the Constitutional Council on the legalising of abortions, rendered in 1975 at the instance of members of the Government majority in the Lower House of the French Parliament;

(b) the ruling of the Constitutional Council on the amendments to the general statute on the status of civil servants rendered in 1976:

(c) the ruling of the Constitutional Council on police powers of search and seiaers rendered in 1977; and

(d) perhaps the ruling of the constitutional Council on the application of the constitutional principle of self determination (article 5 3) to the proposed secession of one of the territories rendered in I975?

5.6. The above material has been presented in order to give a picture of the functions of the French Constitutional Council. We have already expressed our view' that it is not possible to have any such institution in India, having regard to the essential features of our Constitution.

5.;v. We now come to West Germany. The basic law for the Federal Republic of German}; lays down the structure of the Federal Republic, her

1. Manfred Simon, "Enforcement of EEC Law in France-I1" (1976) 92 L.Q.i-L 85. 86.

2. Article 56, Constitution of France. '

3. Edward Mcwhinney, Book Review

536.

4. Paragraph 2.6, supra.

in (Summer 1981). Vol. 29, No. 3, AJCL 535, French Constitu-

tional Council:

jurisdiction and composition.

C:unsti_lutiO11al Coupeil not feasi-

hie In India.

The Constitutional framework in West Gcrma ny.

irgans and their functions. it includes the basic rules according to which all national life in the Federation and the Federal Laender is to run in course, and above all, it lists the basic rights and liberties to which the individual citizen is entitled. lt regards the distribution of the functions of power as an indispensable guarantee of the democratic and constitutional order. The originators of the Basic Law have accordedthe Third Power a particularly strong status. The}? have established a constitutional jurisdic- tion that is to guarantee that regard is paid to the Constitution (the Basic Law) by all State organs. In many foreign countries, this function is taken care of at the same time by the Supreme Court of }ustice~ae.g., in the United States, by the United States Supreme Court, which is well--known merely because of its constitutional administration of justice, or in Switzerland, by the Federal Court. On the other hand, in the Federal Republic of 'West Gerinany--a Constitutional Court made institutionally independent has been created for this purpose, viz. the Federal Constitutional Court, which was inaugurated in 195 T. Like the Federal Court of Ii1sti_ce, it sits in Karlaruhe.

3'; 'EI'i'.'t1l';; Jfllblllilce 3.8. Although still a relative by Young lnstiiution----the 'West German 'Consti1utional Court came into being in I95I------~it soon established itself as an institution in the eyes of the public, chieﬂy because of its jurisdiction in fundamental human rights} °°'"F'°"'°'1°°- 5.9. The legal bases for the activity of the Federal Constitutional Court are Articles 9294, 99 and I00 of the Basic Law as well as the Law on the Federal Constitutional Court of March 12, .1951 (which has however, since been amended several times). The competencies of the Federal Constitu- tional Courtz can be divided into the following four groups :

ta) Nornwzhecking procedure; {Article 93(1) para 1).

(b) Dispute procedure of Constitutional organs, between the Federa-

tion and individual Laender, and between Laender; (Article 93(1) para 2, 3, 4).

5.10. The ('West) {jerinari Constitution has the following provision J'sd'c1in' -. ..

ﬁe; I germs? that defines the ]L11'1S(l1Ct1tJl'l of the Constitutional Court of the Federal Republic of Germany?' as under :--

"gg. (1) The Federal Constitutional Court (of West Germany) shall ecide :

1. On the intetprctat.ion of this Basie Law in the event of dis-

utes concerning the extent of the rights and duties of a highest federal organ or of other parties concerned who have been endowed with rights of their own by this Basic Law or by rules of procedure of a highest federal organ;

.2. In case of differences of opinion or doubts on the formal and material compatibility of federal law or land law with this Basic Law, or on the eonipatibility of Land law with other federal law, at the request of the Federal Government, of a Land Government, or of one-third of the Bundestag members;

1. Gilbert E-tinkmann, "The West German Constitutional Court (Spring 1930, Public Law, 83.

2. Paragraph 5.10, inf:-:1.

3' Article 93, C';onst'ituti.ori of lwfiklg Gianiany.

3. In case of differences of opinion on the rights and duties of the Federation and the Laender, particularly in the execution of federal law be the Laentler and in the exercise of federal supcrvision.. I

4. On other disputes involving prrfalic' law, between the Federa- tion and the Laender. between different Lacnder or within a Land, unless recourse to another court exists.

+21! On complaints of rmconstitutionality, which may be entered in; any person who claims that one of his basic rights or one of the rights under paragraph of Article 2U, under Article 23 , 38, I01. 1'03 or 104 has been violated by public authoritj.-'. ah. On complaints ol' oneonstitiitiouialitv, entered bv communes or associations of communes on the ground that their right to self-government under Article 28 has been violated bv a law other than a Land Law open to complaint to the respec- tive Land Constitutional Court.

5. in the other cases provided for in the Basic Law.

The Federal Constitutional Court shall also act in such cases as are otherwise assigned to it by Federal legislation."

(2)

Of particular interest is the provision in article 93, paragraph 4 If_' supra) of the 'West German Constitution, entrusting the Constitutional Court with adjudication of disputes involving public law between the Federation and the Units, between the Units or Within a Unit. This would obviouslv cover points of administrative law also. [Other disputes where they involve points of administrative l;1vv go to the Federal Administrative Court].

5.11. "Public Law" in German juristic thought embraces all legal connections directed towards the State or other authorities vested with sovereign power. These are, above all, the spheres in which the State is active on behalf of the public weal. Public law embraces, among other things, constitutional law, administrative law, penal law, the rules on court procedure, international law. canonical law, the law on judges, the law on civil servants, police regulations, the law on education. social law, the law on taxation and the law on industrial administration.' 5.12. The German Federal Constitutional Court. like the Federal Court of Iusticc, sits in Karlsrune.' The Court takes its place independent and autonomous, beside the other constitutional organs (the Legislature, the Federal President and the Federal Government). It has its own budget within the Federal Budget and has no connection with any particular Federal Ministry.

--;.r_;. The Judges of the Federal Constitutional Court of 'West Germanv must he at least 40 years of age, be eligible for election to the Buntlestaig and possess the general qualiﬁcations for the judiciary. Half of the mem- bers are elected by the Bundestag and half by the Bundesrat. %he Bundes-- rat undertakes the election in the plenary session by a two-third maioritv. The Bundcstag ﬁrst sets up a Constituent Committee composed of twelve deputies on the lines of proportional representation. This committee then elects

1. Cf. Wolfgang He}-de, Administration of fustiee in the Federal Republic of Germany (1971). Page 38.

2. Wolfgang I-Ievde. The Adniinistratinn of Justim in the Federal Republic of Germany (1971). pages 36-87. ' Concept of Public law. _ Headquarter and administrative matter.

Judges.

the judges, a two--thirds majority also being needed. The election of the judges by political organs is regarded as justiﬁed because the Federal Cons- titutional Court is not only a court of justice but also a constitutional organ, and because its jurisdiction extends into the political area. The requirement of a qualiﬁed majority in the election of judges ensures that no speciﬁc political majority brings a one--sided inﬂuence to bear on the composition of the Federal Constitutional Court} E3e""5 1'1 ""5-3' 5.r4. From a recent articlef it appears that the court consists of two rrnany. . . .

panels (Senates) independent of each other, and each now consisting of eight lodges. Three judges of each panel are elected from the benches of other Superior federal courts [the Federal High Court, Federal Administra- tive Court, Federal Labour Court, Federal Social Court and Federal Tax Court].

":ff5"'E5h"1:'°' 5.15. Italy also has a Constitutional Court. The jurisdiction of the Cgnstilmional Constitutional Court is thus deﬁned by the Constitution of Italy?

own' "134. The Constitutional Court decides: on controversies concerning the constitutional legitimacy of laws and acts having the force of law, emanating from central and regional government; on controversies arising over constitutional assignment of powers within the State, between the State and the Regions, and between Regions: on iinpe:ichments of the President of the Republic and Ministers. according to the norms of the Constitution."

Ital :d I ' . . . . . ..

ofi'1n.Cf)'1Ej:tIl:11;E1I.on 5.16. The Italian Constitution has an interesting provision as to the "~>na|"?r'- date from which a judicial pronouncement of unconstitutionality hy the Constitutional Courts takes effect. It says' 2--

"The decision of the Court is published _and is communicated to Parliament and the interested Regional Councils in order that provi- sions may be made in constitutional form where considered necessary".

5.17. Norway also has a constitutional court, but the jurisdiction of that Court seems to be limited to proceedings for implicating holders of high oﬂices. Here is an extract of the material provision,5 of the Norwe- gian Constitution.

Norway.

"86. (First paragraph) The Constitutional Court of the Realm (Riksrett) shall pronounce judgment in the First and last instance in such actions as are hrought by the Odalsting against members of the Council of State. or against members of the Supreme Court of Iustice (Hoyesterett), or against members of the Storting for criminal offences which they may have committed in that capacity.

=ll=ﬁ= 'Inf %=il= (Third paragraph) "The ordinary members of the Lagting and the permanent members of the Supreme Court of Iustice shall be judges of the Constitutional Court of the Realm. The provisions contained in section 87 shall apply to the constitution of the Constitutional Court of the Realm in each particular case. In the Constitutional Court of the Realm the President of the Lagting takes the Chair".

1, Wolfgang I-leyde, Administration of Justice in Federal Republic of Gerinany (1971). page 89.

2 Gilbert Brinkrnann. "West German Constitutional Court" (Spring 1981), Public Law, 90.

3. Article 13¢, Constitution of Italy.

4_ Article 136, Constitution of Italy.

5 Article 86, 1st and 3rd paragraphs, Constitution of Norway.

5.13. The Constitutional Court of Yiigoslavia, apart fromideeidinst ""8°'~'.'**':'l'"

. i, . ,, . . . . . . D Jurisdiction of the question of conforinity of law and inter-state or '|l.lI1S(l1LIt10I1'.ll disputes, c(,nm'm.;0,,a] "is also required to decide on" the protection of the rights of selﬁgoverriiiient Court and other basic freedoms and rights established by the Constitution, if these freedoms and rights have been violated by an individual decision or aetion of the federal org:ins'."

5.19. Further, article 242. of the Constitution (Yiigos-lavia) has the Eglflfgn t'gf§:5;'4}fa'} following very interesting provision : itssembiy, "The Coiisiiituiioual CI_'i|il1'l. oi' 'i"i'igiisl;ix-is .c.r:izf£ .{jr.*c,'J i':.:¢'i'f ii:fr:;m1c=.i about manifestations of interest for the attainment of eonstinitioiiality and legality, and on these groiinds shall oﬁer to the Federal Assenibly its opinions and proposals to pass laws and to undertake other measures to secure constittitionality and legality .[iI'I.tl to wrest the rights of self- governmcnt and the other freedoms and rigllits of the citixeris and organisations."

.. - - , ,- - - .* _ ,- ' .- ' Duty of Federal 3.20. Another interestiiig PII't)\lSlI)1'l in the lugoslasiaii Constitution Assembly of relates to the duty imposed on the Federal Assembly. Article 245 rearlsLr»-- Yugcismvia to _.' ., . . , . . bring law into

243. Wl1CI1€\'t[ the lminstitutional. Court of iugoslavia dcterinines cgnforfnily with that a federal law does not Conform to the Constitution, the Federal judicial P'°"°""' Assemble shall bring the law into conforniity with the Constitution cemm not later than six months frnin the (late of publication of the decision of the Constitutional Court.

If, the assembly does not bring the law into conforii-nit}; with the Constitution within this period, thelaw or those of its provisions that do not conform to the Constitution shall cease to be valid, and the Constitutional Court of Yiigoslavia shall declare them invalid by its decision."

. . . . . . . . Locus standi in 3.21. The most interesting provision in the Yugoslavian Constitution me c0n5;,',._nim;31 is about. ifocais rtandi, Article 24:) read~i--»-- Ct1.ll'linY'|13°'5l"Vl3 ":49. A point of C0nStll'l1tl.0Dﬂlll':.' and legality may be raised before the Constitutional Court of Yiigcislm-*i:i by :

(I) The Federal Asseiiibl}; and the rcpiiblicaii asseinhlies:

(2) The Federal l"..~;L-s;uti~.'e (Iiiiiricil Lllltl the republiciiii execiitivc councils, except when the eonstitutionzility of laws P1lS.'i'(iL'i by their assemblies is liciiig judged;

(3) The Supreme Court of Yugoslavigi and the other Supreme Courts of the Federation, as well as the re ublicaii so reme _ . . . . P . P .

courts, it the point of eonstittitionality and legality ensures in court proceedings:

(4) The Federal public. pl'f'IF1'.C11t0I', if the point of coiistitutioinality and legtility ensures in the work of the public prosecution;

(5) The republican constitutional courts:

(6) The assembly of a soeial--politii:al commuiiity, or a working or otlier autonomous organisatioii, if any of their rights established by the Constitution of Yugoslavia have been violated.

Article 14], Constitution of Yugoslavia.

Article 245, Constitution of Yugoslavia.

3. Article 249. Constitution 0! Yugoslavia.

A point of constitutionality and legality may be raised by the Constitutional Court of Yugoslavia of its own initiative.

"The conditions under which other state organs, organisations and citizens may institute proceedings or move the institution of proceed- ings raising a point of constitutionality and legali before the Cons- titutional Court of Yugoslavia shall be determined 31 federal law."

eP'xiaIrI:sisedi:fu_i§,'fsl"_ 5.22. in the United States also, the creation of divisions or panels in the apex court has been one of the measures discussed, in the context of specialisation.' $igniﬁeanm or 5.23. The provisions relating to various constitutional Courts on the '1:3:';:'!:s":,'t':1'i50 M15 10 Continent, whose gist is stated above, may,_no doubt, looklleterogenous in Courts. character. But, on deeper reflection, they will be found to yield one common postulate. They are all based on the postulate that constitutional adiudiCa-- tion stands in a class by itself, and can be appropriately assigned a separate status. Such adjudication should not necessarily follow the same pattern as ordinary litigation, but can be legitimately regarded as occupying a place of its own. And, consequently, it would be appropriate to make, for such adjudication, special provisions not otherwise made for ordinary litigation. This is in recognition of its special character.

1. Paragraph 3.7, supra, CHAPTER 6 RECOMMENDATIONS

- 6.1. The matters discussed in the preceding Chapters -enable us to formulate the principal issues that need consideration and to make our re- commendations thereon.

The first issue, of course, is whether there is need for creating a Constitutional Division within the Supreme Court. it appears to us, on a consideration of the nature of constitutional adjudication and its importance in the Indian context, that if constitutional adjudication is to maintain a certain level of quality, consistency and coherence, the creation of such a division is a desideratum. The peculiar characteristics of such adjudication have been dealt with by us at length in an earlier Chapter,' and we need not repeat all that has been stated in that chapter. On giving due weight to the reasons set out in that Chapter, it appears to be desirable to create. within the highest court in the country, a machinery of .1 specialised character for constitutional adjudication--wl1ich is what a constitutional Division envisages.

It may be mentioned that Dr. Edward Mcwhinne , the eminent constitutional jurist, who was good enough to give us: the beneﬁt of his views, has, addressing himself to Q. 1(a) of our questionnaire, expressed himself thus :--

"Two dominant trends in democratic constitutionalisrn since 1945, as the record of comparative constitutional law experience amply demonstrates,. are the institutionalisation of iudicially--based control of constitutionality, as part of the general constitutional syseni of checks and balances; and the implementation of that judicial control of cons-- titutionality (judicial review) through creation of a specialised constitu- tional tribunal having both primary and also appellate review }uris-- cliction over issues of constitutional law". The question whether or not to opt for creation of a Special Constitutional Court cannot, however, he answered in the abstract, for it is a political--legal decision that must he made in the particular historical context of each national legal system and on a cost--beneﬁt analysis of the legal pains and gains thereby involved. In the case of a national legal system that is already a going concern and fully operational, a disproportionate amount of political and legal energy may have to be eirpen ed and the quest for a The ﬁrst issue:

need for creating special division of the Supreme Court.

Special Constitutional Court, and it may be better to opt, instead, 4 for the lesser beneﬁs of incremental changes grafted on to the existing court system and simply augmenting its constitutional review competence and capacity."

6.2. We have already indicated our view3 that the adoption of the French System of Constitutional Council is not feasible for Indian condi- tions. Nor it is necessary to create any other new institution. What is required is a utilisation of the existing institution, with the above modiﬁ- cations.

1_. Chapter 3, supra.

2. Paragraph 1.7, 339"'-

3. Paragraph 2.6, supm.

No new institution [0 he created-

3U 6.3. Accordingly. it is our recornmendation that the Supreme Court in the Suprcmg or India should Consist ot two Divisions, namelv .---

1'" {ti} (..UI15lI1tUtlUJL':1l Division, and (la) Legal Division. ' We are suggesting the name "Legal Division" as per (b) above, as a convenient appellation for the Division that will be concerned with all non- constitutioiial matters. If any other and more appropriate name can be devisetl, there should be no objection to it.

The 3 round issue: (3.4. If the proposed constitutional division is to be created, it will have 'urisdi' ' fh ,'__ - - - - - -

'prOpos';'é°3iV'i'Si:m'°: to .»l.;51gI]f.'.Ci a part of the business of the Supreme Court within 1IS.j11l'lS--

recommendation. diction as at present provided. The second issue that falls to be considered is, what matters should be assigned to that division. In this connection, there are two principal alternatives to be considered as per (a) and (b) below :---- _

(a) This division may be entrusted with the adjudication of all public law cases within the Supreme Court's jurisdiction. If this alter- native is accepted, its jurisdiction would comprise---

(i) every case involving a substantial question of law as to the interpretation of the Constitution,' or an order or rule issued under the Constitution;

(ii) every case involving a question of constitutional law, not falling within (i) above;1

(iii) every appeal against the decision of a High Court, rendered under article 226 of the Constitution;

(iv) every appeal against the decision of a tribunal under article I 36 of the Constitution (whetlier such tribunal is created by a law passed by virtue of article 323A'or article 3238 of the Constitution or otherwise), where a question of adminis- trative law is involved.

(b) In the alternative, only matters of Constitutional law may be assigned to the proposed Constitutional Division. If this alter- native is accepted, its jurisdiction would comprise only the items at and (ii) mentioned in (a) above. The jurisdiction would then cover only the following:

(1) every case involving a substantial question of law as to the interpretation of the Constitution3 or an order or rule issued under the Constitution, and

(ii) every case involving a question of constitutional law, not falling within (i) above.

Our prefereiice is for alternative (b) above. It is easier ,to define pre- cisely and locate such matters, conﬁned to constitutional law proper. 'We :appreciate that questions of constitutional and administrative law often dovetail into each other, particularly in proceedings under article 226 of the Constitution (which may reach the Supreme Court on appeal). But, in our opinion, it would be desirable to make the jurisdiction oi' the pro posed division narrow and compact, at least for the present.

Cgmpm-c article 132 of the Constitution.

Ilcm (ii) would he needed for covering. for eiiample, enactments supplemenrin the Constitution. ' 3; Compare article 132 of the Constiiiition.

!"'-"

Accordingly, we recommend that the proposed -Constitutional Division of the Supreme Court should be "entrusted with the cases of the nature mentioned in alternative (b) above. It Eollowi that other matters coming to the Supreme Court will be assigned to its Legal Division.

6.5. Of course, the creation of two divisions in the abstract does not end the matter. For practical implementation of the proposed scheme, it will be necessary to deal with at least two concrete matters, namel , (i) when can a constitutional issue he said to be "involved" and (ii) w at will be the machinery for allocating cases as between die two divisions.

As to the_ First matter, which relates to the criterion to be adopted. we should make it clear that a case should be regarded as "involving a" cons- titutional issue only when the decision of that issue is absolutely necessary for "the disposal of the controversy. The mere fact that a party. has raised a constitutional issue is not enough. Although it may not always be possible to determine, at the outset (at the time of allocation of the case), whether the case "involves" a constitutional issue in the above sense, it may still be useful to bear this aspect in mind.

6.5. We may mention that in the United States there have come to be recognised a number of propositions regarding the circumstances in which the Courts will embark upon a consideration of constitutional ques- tions. These have been conveniently collected in the judgment of Brandois ].~ in one of the decisions of the U.S. Supreme Court.' One of the pr0posi-- tions laid .down is----

It is not the habit of the court to decide questions of a con5titu--' tional nature, unless absolutely necessary to a decision of the easel.

6.7. The above point concerns the criteria to be adopted. It will also be necessary to create a machinery for allocating cases to the division concerned, on the criterion mentioned in the preceding paragraphs. The matter, we think, can be dealt with by a suitable provision in consequential legislation of the nature already indicated by us,3 or (if not so dealt with), by rules to be made by the Supreme Court.

Allocation of cases to the two divisions of the Sn reme Court would not admit of any precise mathematical formula. W ile clear--cut cases may not present much difﬁculty in the matter of allocation, border-line cases are likely to ose a problem. That apart, there must be safeguard provided to check t e ingenuity of Counsel who might endeavour to invoke Criterionto be adopted for deter-

mini ng When constitutiona| issue Criteria down .,.

Machinery allocation buslncss.

(even if it be too tenuous or artiﬁcial an attempt), one or other constitu-- '- ' tional provision so as to bring before the Constitutional division a case which does not properly belong to it. To avoid any such attempt, we would suggest that in the proposed machinery, a provision should be made which would require counsel appearing for a party to certify that a prior decision of constitutional issue is absolutely necessary for the disposal of that particular case.

In addition, we contemplate the appointment in the Supreme Court of a St:niUr,Distric-_t Iudge as Additional Registrar, who would, from his experience and expertise, verify the certiﬁcate so issued by counsel. This

1. Asfiwtmder v. r.v.A'.. (nus) 297 us. 233, 347; so L.Ed. ass. ':11.

2. em.-on v. o.s., 19:» us 233, 293; 49 L.Ed. 432, 435.

3. Paragraphs 4.4 to 4.7, supra.

involved laid in U.S.A. for of 32

-would be an additional safeguard and would go a long way in preventing the Constitutional Division from being cluttered with other cases. In our opinion, it will be appropriate to. give to the Chief Iustice a power to create such a machinery and to regulate the details of such allocation.

We would, in this context make the following concrete su gestions for settling controversies that may arise as to the division which should properly deal with a particular case :---

(i) If, after initial scrutiny of the -case by the officer of the Supreme 'Court, suggested by us above, the case is allocated to the Cons-

titutional Division i.n the So reme Court and if the Constitutional Division is of the opinion" at it is not a fit case to be decided b it, it may either dismiss the matter or put up the matter for orders of the Chief Iustice for transferring the same to the Legal Division to be dealt with by it.

(ii) The same procedure may be followed in the converse case where a case is allotted to the legal Division which is of the view that the matter should be heard by the Constitutional Division.

These suggestions are made so that in case of any conﬂict between the Constitutional Division and any other Division in the Supreme Court as to which Division should deal with the particular case, the matter has to he placed before Hon'ble Chief Iustice of India. for his ultimate decision.

f Lelgality ofdispo- 6.8. We also consider it necessary that there should be inserted, at the flﬁ=s,'i1§:,,=d,t° '3' appropriate place, a provision which 'W1l1,.l1:1 effect, censure,' by employing suitable legislative language, that the validity of the disposal by a division of the Supreme Court of a case assigned to 1': shall not be questioned merely on the ground that----

(:1) the case disposed of by the Constitutional Division did not in-

volve a question of constitutional law, or (la) the case disposed of by-the Legal Division involved a question of constitutional law. ' Such situations will he very rare, particularly if the procedure suggested by us is adopted.' Nevertheless, it is proper to have such a provision, in order to avoid possible challenges.

6 o. The tin"-rd issue that arises concerns the composition of the pro-

The third issue:

regard are Composition of osed Constitutional Division. Our recommendations in this the Constitutionll nmsion, as under .---~

(a) The Constitutional Division should consist _of not less than seven Iudges. subject to what is stated in (b) below.

(b) in matters requiring more than seven Iiidges or similar situations, the Chief Iustiee of the Supreme Court should have the power to assi n temporarily Iudges to this division from the other division, if ere is a temporary increase in the work of the other division, the Chief Iustice should have a poyver to assign teinporarily a Iudge from the Constitutional Division to the other Division.

1. This is not a draft of the provision contemplated.

2. Paragraph 6-7. supra-

{c)- The Iudges belonging to and functioning in, the Constitutional Division should sit en bone for hearing all cases assigned to that Division.

'6.Io Tlhe fourth issue relates to the qualiﬁcations to be required of the judges to be posted to the Constitutional division. 'We envisage that the judges to be so appointed should, besides satisfying the qualiﬁcations laid down in article 124 (3) of the Constitution for appointment as a judge of the Supreme Court, have special knowledge of, or experience in constitutional law. We do not, however, recommend the insertion in the Constitution (or in related legislation) of any provisions as such on the above point. It is expected that when appointing judges to that division. the above consideration will be borne in mind.

6.11. The ﬁfth issue concerns the posting of judges to each division. In this regard two alternatives are open as mentioned in (a) and (b), below :

(:1) A judge may, from the date of his very ap ointment, be appoint- ed to a particular Division for his entire ju icial tenure (subject to such adjustments as may be necessary for temporary periods to meet temporary situations).

(b) In the alternative, the appointment may be only to the court and not to a particular division, and the judges may he txansferablc inter 5:.

We prefer the first alternative.

In our view the appointment of prospective judges to a particular Division should, from the very beginning, be made to that Division, of course ternporarv adjustments as already recommended,' will be possible. The procedure for appointment to the Supreme Court as provided in the Constitution will, of course, continue to apply. subject to what i.s stated above.

6.12 Sixtiily, as regards the Chief Iustice, he should be entitled to sit in either division of the Supreme Court, whatever he the division to which he may have been assigned on his initial appointment to the Supreme Court.

6.13. Apart from the above substantive provisions, transitional provi-- sions will obviously be required in relation to several matters, including. in particular (and without purporting to be exhaustive)--'

(a) the posting to each division of the judges already in office at the time when the new scheme comes into force; and b savin or other rovisions regardin endin cases. 3 P ,. E3 P S

1. Paragraph 6.9, supra.

The fourth issue:

_i-'iilﬂlfiiration of Judges. _ The ﬁfth issue:

posting of_judges to each Division.

Chief _Justiee to he _ entitled _ l to sit in any division.

Tran_si_tiona1 provisions.

A'"°"'3'"°"" °f . 6.14. The rccommcndatjons that we have set out in this Chapter are It Co11st't ti . . . . .

:,,.f1 .mmq1',;',,t§'a'i sub]cCt to, and are to be read along With, ccrtam rccoxnmcndatxons mad: D1'0V1SI0115- in an czujlicr Chapter when discussing the need for constitutional amend-

-ment and consequential provisions.' (K. K. MATHEW) C/.'r.r'1}rm.cIn (I. P. CHATURVEDI) Mam Em-

(DR. M. B. RAD) Mcmﬁcr (P. M. BAKSHJ) Part-time Member (VEPA P. SARATHI) T Part-zime Member {_ A. K. SRINIVASAMU RTHY) M cm.r§cr--S:3€rc£:2ry Dated 1-3-I985}.

1. Paragraphs 4.4 to 4.7, sup;-a.

APPENDIX LAW COMMISSION OF INDIA QUESTIONNAIRE The background notes appearing below each of the questions do not represent the views of the Cornrnissi )1] and have been appended .'-o as to raise issues anti promote discussion. Replies to be sent to V. V. \-'az=:, Member Secretary', Law Cotnznission, 'I30-'A' Wing, Shastii Bhavan, New Delhi~lll] 001 by lat June, 1933.

1- ta) Should the Supreme Court be replaced by a constitutional court dealing exclusively with constitutional matters?

(b} Should such a court invariably sit en banc (as against in benches as is the present practice)?

A federal constitutional court was established in West Germany in 1951 which has the power to declare statutes unconstitutional as well as to outlaw political parties which seek to impair or abolish a free democratic basic order or which endanger the existence of West Germany. The Court consists of eight Judges in two panels, six out of them being elected by two-thirds majo- rity. The Court has been criticised as being subservient to the Government of the day and it no party enjoys two-third majority, the selection procedure is reduced to a matter of haggling between the political parties : 'If you accept our SPD candidate we accept your CDU candidate' (West German Federal Constitu- tional Court'. Political Control Through Iudges. Gisbert Brink- man (1981) Public Law 83 at page 84). The criticism that a single judge of the Supreme Court can carry some of his colleagues to his way of thinking and the verdict in a case depends upon the composition of a bench would to some extent be diluted if the court sits on bench in each and every case. Even in U.S.A. leading advocates ﬁnd it diﬁicult to predict the range of ﬁrst amendment in view of the change in the personnel of the Court. {Floyd Abrams quoted in Hindustan Times dt. 23-12-1981 page 12).

2. Are you in favour of the establishment of a Court of appeal as the ﬁnal arbitrator of disputes of law (other than constitutional law} leaving the Supreme Court to concentrate on only constitutional issues'? Views have been expressed that questions of law (other than constitutional law) and facts should terminate at an intermediate court of appeal so that the Supreme Court is able to devote its uninterrupted attention to issues of constitutional law aifecting the various segments of the variegated populace of this sub- continent.

3. Should the Supreme Court only take up that much work which it can dispose of within three months ?

The United States Supreme Court receives about 5,000 cases per year and selects only 200 out of the total filing as being ﬁt for hearing; At least 4 out of 9 justices must vote to hear a case.

4. cha

5. tions 36 In England during 19705 the average number of appeals heard annually by the House of Lords has been only 23 so that the Judges could devote greater time to matters of public importance.

Do you feel that the Supreme Court is acting as a third her?

The judiciary appears to have been divided into two classes: the activists who believe that if the legislative text is too hold to be self acting the Judges must make the provisions viable by evolution of supplementary principles even it' it may appear to possess the ﬂavour of law making (Rajendra Prasad v. State of U.P. A.I.R. 1979 SC 916, 924). The other school of strict constructio-nalists does not countenance reading into a statute conditions which are not to be found therein by process of construction. [Gurbaksh Singh Sihba v. State of Punjab (1980) 2 SCR 565]. The latter school abhors the theory of judicial legislation even though on facts of a particular case the court is satisﬁed that the existing law requires: an urgent reappraisal. [Techno Impex v. Gebr. Van Weeldc. (1981) 2 W.L.R. 821, at page 842]. Some legal writers feel that the court speculates and ponliﬁcates about society and economics. mostly from non- evidence, without stall investigation, opinions of experts on law enforcements, industry and in general without the tools necessary for legislative work.

Have the judgments of the Supreme Court regarding compensa- payahle upon the abolition of feudal rights brought to nought the process of social reform '?

6. One of the Judgs of the Supreme Court expressed his view that the legislation relating to abolition of the zamindari system met its waterloo at the hands of the judiciary and the beneﬁts of independence have not percolated to the masses. Even in New Zealand, views are being expressed that the decision of the House of Lords in R. v. Sang (1979) 2 All E.R. 1222 concerning judicial discretion to exclude evidence on the ground that it was illegally or unfairly obtained has been criticised as being not based on the social conditions prevailing in New Zealand. Justice Black of the U.S. Supreme Court disfavoured courts assuming roles such as running school systems and making decisions about racial proportion of faculty members for which they are not trained. Justice Stuart was also of the view that courts should not be in the business of creating new rights, Justice Black accused his colleagues of allowing the court to turn pro- fessional criminal loose to prey upon society with impunity and a theory is gaining ground that the court has no business forc- ing its views on t-he State because it lacks accountability and is not' the voice and conscience of contemporary society.

Are courts grasping at jurisdiction in matters which lie squarely within the competence of the executive branch of Government'?

At the instance of a Congresswoman Elizabeth Holtzman .9 Dis- trict Court in New York had issued an injunction in July, 1973 halting the bombing of Cambodia but the injunction was vacated immediately so that not a single bombing schedule was upset. (The Brethren Inside the Supreme Co1Irt--Bob Woodward and 7".

Scott Armstrong--~for short 'Br thren' p. 2??-2".?8_l. Opinions have been expressed that if the Suprenic Court had not entertain- ed the challenge to the Bearer Bond Scheme, Government could liave raised resources to the tune of Rs. H100 ,u'- crores. In New Zeaiand fast track legislation like the National Development Act, 19?9, limits judicial challenges to works of national im- portance. The judgment of the Supreme Court stalling the attempt of the Maharaslitra Government to clear up footpaths in the city, of unauthorised dwellers has evoked a comment from a former Judge: "Under what law are the trespassers en- titled to alternative accommodation'? What Judges will do it"

trcspassers set up shanties in the specious lawns of the Court or their houses'.'''' Should appointees to jurlgcships of Supreme Court and High Courts have a political baclrground?

Earl Warren was a former crusading prosecutor, threc~tcrm Governor of California and Republican Vice-Presidential nominee with the result that when he was appointed as Chief Justice ot the Supreme Court of the United States of America. some felt that he had at greater impact on the country than even some Presidents. In Italy a constitutional court which has come into existence in l955 consists of l5 members. one-third of whom are nominated for 12 years term by the Head: of the State. one-third by the legislature and one--third by the judiciary'.

Is the criticism that persons of humble origin or low economic status are not likely to be appointed as High Court Judges in India justified'?

The English judiciary is criticised as being inevitably out of sympathy with hiodcrit social tendencies and has long failed to have any understanding of the working conditions, attitudes and aspirations of the mass of the population. Most of the English Judges of High Court and Appeal Court had received public school education followed by legal studies at Clxbridge and then called to the Bar. [K Eddcy's English Legal System (2nd Ed. 1977)]. In India the Chief Justices are criticised for recom-

mending lawyers belonging to at particular caste or group for jndgeship.

Will it be correct to say that the Judges of the Supreme Court and the High Courts are not commanding that prestige which they used to command in the past only because their salaries are very much lower than the earnings of leading advocates?

From time to time successive Law Ministers have ruefully lamented about the unwillingness of the leading advocates to accept judgeships because ot_ the poor ﬁnancial beneﬁts. Even in the United States of America the salaries of Supreme Court Judges are very much lower than t.hc emoluments of leading lawggers and Justice Fortes had to Sufi'-er 90' per cent cut in his cmoluments when he was appointed as Judge of the Supreme Court. [The Brethre11--page 20}. The Chief Justice of the United States gets a salary of $92,400 while the Associated Judges got S 38,700 per annum. Sometimes the Chiei Justices of the State Supreme Courts were getting salaries more than ll}.

adjournments on ﬂimsy grounds'?

I 1.

cases'?

12. taken

13. 33 that of the Chief Justice of the United States. Some bright boys fresh out of a law school were starting at 5 40,000 a year while law firm partners in the age group -19-51 were making 5 l94.600 on the basis of 90th percentile. Even amongst the federal Judges who get a salary' of about S 51500. 7 had resigned in the [9505 while the number of resignation has risen to 24 during the past decade. Because of the poor economic compensation 56 of the Federal Judges are continuing to work full time even though they became entitled to retire as long back as in June. 1960.

Is much of the delay' in the courts ocmsioned by lawyers sec!-.:ing o One of the Judges of the Supreme Court felt that certain bar associations behave. like trade unions and resent refusal of adjournments to counsel resulting in unnecessary delay. Chief Justice of a High Court also referred to accommodation sought by leading lawyers disturbing the Court calendar.

Should the Supreme Court evolve its own procedure in criminal Commenting on the unusual procedure followed by the Supreme Court in putting court questions to an accused in a murder case. a legal journal observed that a court or tribunal should not evolve its own procedure in each case according to its opinion about the circumstances of the case and lay down a precedent which is: not warranted by the Code of Criminal Procedure. (1930-81) 85 C'.W.N. ("Editorial Notes} 85.

Is not much of the time of the Supreme Court and High Courts up by constitutional writs which ultimately are dismissed'?

On an average not more than 5 per cent of the writ petitions ﬁled in Indian courts ultimately succeed while in West German constitutional courts the percentage is as low as 1.13.

Presently the judicial system is based on the Anglo-Susan jurisprudence. Should it be 1'epl-need by an Indian system of Adminis- tration of Justice?

The present judicial system has sonic-times been characterized as a legacy of British Raj and the prized values of British jurisprudence such as equality before the law, independence of the judiciary and judicial review have been disfavoured. Some have gone hamntter and tongs at the contents of the recent lectures delivered by the American Lawyer Abrams and the English Judge Lord Templenlan labelling it as irrelevant to the country and branding the invitation to these lectures as "ii-aternising by a handful of judges. idvocat-cs and journalists tltwarting the emergence of an indigenous Third World legal system". (Hindustan Times 29th December, 198]. page 9}. Ever so. no concrete suggstions lnwe hccn offered spelling out as to what exactly is meant by 'Indianising of the judicial system'.

1'4.

Do you feel that the High Courts grasp at jurisdictions in matters where the petitioner has not e.sli-ousted an equal1_v ctlicacious remedy provided by the relevant statute?

16. court's working time arguing for interim relief in cases The principle that a petitioner must exhaust all the equally eﬂicacious statutory alternative l'E'.1'l"lC(ilL'.5 not being unduly oner- Ous before coining to 3. court is well settled. tThan Sing-'r1 v. Collec- tor of Customs. A.I.R. 1964 S.C. 1419; British l.S.\V. Co. v. Jasjit Singh, A.1.R. 1964 I451; K. K. Srivastava v. D, K. Jain, A1 .11. 1977 SC. l 703}. However. the ambit of the expres- sion 'equally etﬁcacious' has given rise to difficulties of interpre- tation. [Malwa 'v'anaspa.ti. 8: Chemical Co. Ltd.. Indore v. Union of India. 1980 MP. L}. 84. Meteor Satellite Ltd. v. l.T.O. Companies Circle-II. Ahmedabad (1980) 121 I.T.R. 311 (Gnj.'l: Tapan Kuniar Jana v. The General Manager. ('al- cutta Telephones. l9S0 Lab. IC. 508; Bavaji and Motibliai v. Inspector of Central Excise. 83 C.W.:'\l. 689: Rabinclra i'-lath Mukherjee v. -S. R. Das. 1979 Lab. if. 1233': Ashuk Indus- tries v. State of Bihar. AIR. l9?9 Patna 217; Dharam Singh v. Bank of India. [979 Lab. LC. 1079; K. S. Siddalingaiah v. State of Kariiataku. A.I.R.. 1979 Kar. I90]. Justice Frank- furter felt that it is iniperative that the docket be kept clown so that its volume does not preclude wide adjutlication. In Eng- land the House of Lords has been liearing about 33 appeals per annum: while looking at the pendency in our higher court. a criticism is being levelled that they 'assume role old a. knight errant' grasping at jurisdiction by entertaining any case.

Can the judicial process be seientircd?

Recent trends in computer technology and work of robots has given rise to the question : "If we can land on the moon, can we not solve our disputes by teclinologg.-'T' There are attempts to computer-predict appellate decisions by remote psycho- analysis of the panel of judges i.e. by reading the tea leaves in their prior opinions. {Needed ': A judicial welcome for tech- nology--Star Wars or -State decisions. by Hon. Howard T. I-Iarlrey. 79 Federal Rules Decisions 1979. page 209}.

Do you feel that some leading advocates take up most of the having no merits and thus upset the day's regular ﬁxtures'?

1?.

In April 1981. Chief Justice of India sliarply pulled up four Senior Advocates for taking over two hours of the working time of a ﬁve Judge Bench on a mere application. for interim stay which was ultimately refused.

Has the practice of 'Beach tixation' b_v lawyers, taken roots' in the Supreme Court and lhe High Courts'?

Two of the Judges of the Supreme Court have brought into focus a current practice among the lawyers to ensure that cer- tain cases are listed' before a particular Bench and that in collu- sion -with the Registry officials non-urgent matters are given precedence.

is.

sit)"

Arc certain advocates being related to sitting Judges earning by way of 'negative practice' inasmuch as they are engaged only to ensure that the matter gets transferred' from the court of a particular Judge'?

19. Rule 6 of Chapter II of the Bar Council of India Rules states that an advocate shall not enter appearance or practise before a court if the Judge is related to him as father, grandfather. son. grandson. uncle, brother, nephew. ftl'St cousin. husband. wife. mother, daughter. sister. au_nt. niece, Father-in.-Ia.w. n1other-in- law. son-in-law. brother-in-law. daughter-in-law or sister-in-law. it is alleged that clients who do not wish their case to be heard by a particular bench engage one of the listed relatives prac- tising in that court to ﬁle a vakalatnama on their behalf and secure a transfer of the case.

Are over-zealous Government departments responsible for in-

creasing the courts calendar'?

20. 2!.

When the Inland Revenue pursued an appeal agitating the question whether a teacher who was being paid £ 13 as mileage allowance for driving to meetings outside her hours of duty is- liable to pay tax on that allowance. Mr. Iustice Walton gave vent to the uncomfortable feeling that. the Crown spends so much time and eifort pcrsccuting minnows that it is small wonder there is no energy left to pursue the real sharks.

Should the Supreme Court encourage public interest litigation'?

Dinosaur cases of Bornbay pavement dwellers. condit'1on.=; in women's re-settlement homes in Delhi and Agra ﬂesh trade have evoked mixed reaction. Some have dubbed those cases as political stunts and an attempt by journalists to run the country; while others have commended the Court for taking issues affecting millions of people.

Will it facilitate disposal of a greater number of cases it oral arguments are restricted to half an hour each side'?

22. to file As against the practice in our Higher Courts where counsel address the court for months together, the United States Supreme Court permits oral arguments for hall' an hour on either side. An exception was made in desegregation cases where twice the normal time was allowed.

{The Brcthcrn pp. 2, 41).

Will a procedural requirement making ft obligatory on counsel written briefs to cut down the oral argurnents?

Fixation of half an hour time for arguments in the American courts is rendered possible because of their practice of insisting upon briefs {called Brandeis brief). Preparation of briefs will lend to exactitude and narrowing down of matters in controversy as 'well as afford opportunities for young lawyers to do research. As the briefs would be eventually printed by some law journals counsel would necessarily have to devote more time at the désk and the practice of reading law reports in court in cxtensc would disappear.

23. 4] Should some appeals be disposed of without hearing oral arguments?

24. ' In the Supreme Court oi" town. as cases were submitted to the court in 1973 Without oral arguments which total increased to 128 in 1974. Even where oral arguments were pennitted law- yers were allowed 10 to l5 minutes. for arguing each side and 311 ﬂdditiﬂllitl We minutes for appellanfs rebuttal. (Appellate Congestion in Iowa : Dimensions and Remedies Horfble Mark Me Cormiek 25 Drake Law Review l9?5-76 p. 133).

Will it not make for better interpretation of statutes if the rule putting an embargo against citing of debates in Parliament as a legiti- mate aid to construction is abrogated?

25. The time honoured practice of the English rules of. interpreta- tion of statutes that l-lansard can never be rolled by the court in construing a statute or for any other purpose is being chai- lenged in England. Lord Denning thought of a way of over- coming the obstacle by referring to the debates quoted in the works of jurists [Regina V. Local Connrtissioner, Ex-parte Brandford Council (1979) ! 0B. 387]. But this device of look- ing into a text book containing the quotation from I-lansard has been criticised by a writer as 'not cdiiying' [Statutory Reform : The Draftsman and the Judge--{l981) 30 I.C. LG. 141 at 163}. The Indian Law closely 'followed the English Law [Administrator General of Bengal v. Premlal Mullic-it, ILR 22. Calcutta 788 (PC) pp. 799, 800}. But pleas have been made for whittling down the rule (State of Mysore V. R. V. Bidap A.I.R. i973 SC. 2555 Fagu Shaw v. State of West Bengal AIR. 1974 SC. 613 at 629}. But sometimes even speeches of Ministers while piloting a Bill are not looked into [Satpal & Co. v. Lt. Governor of Delhi (197%)) 4 S.C.C.'. 232 at 245]. Lord Devlin has cited an instance [Staﬁord V. D.P.P. (l9?4l A.C. 878] where had their Lordships looked back at the parliamentary debates in which some of them had themselves participated in their legislative capacity they would have seen that Parliament had not the slightest intention of making a great change in the law [lecture delivered ht All Souls College, Oxford on 2nd May, 1978 quoted in Devlin : The Judge (l9'I9) pp, 143.] Should the present practice of plurality and separate judgments be substituted by one of writing»

(a) Per curiam opinion:

Lb) a single judgment representing the highest common deno-

minator of the bench'.

(cl one majority and one minority opinion'?

The separate opinions delivered by the -Supreme Court in Delhi Laws Act case (AIR. 1951 SC. 33?.) covering 370 pages of reports had created confusion about the ratio decidendi in the case and even Chief Justice Patanjali Sastri felt that no particular principles were laid down (Kathi Raning Rawat V. Saurashtra. A.I.R. I952 S.C'. 123}. it was given to Bose I. to analyse the several situations and indicate how the judges split on each situation {Rajnarain Singh v. Chainnan, Patna Administration

26. 42 Committee. A.I.R. I954 S.C. 569). The plurality decision re- garding death penalty case gave rise to considerable diﬂiculties in the United States of America [George V. Georgia, 428 U.S. 153 : Furrnan V. Georgia, 408 US. 333] as well as in our Supreme Court (Rajcndra Przisad v. -State of U.P., AIR. 1979 SC. 916). in the area of obscenity confusion prevails in the U.S.A. as to whether the "prurient interest" test has been re. placed by "Redeeming social value" test {Roth v. United States. 354 US. 476.: Funny v. Hill. 383 US. 413. United States v. Marks. decision of Court of Appeals For Sixth Circuit. quoted in Columbia Law Review; May I980 at page 7'37). Lord Denning was also not permitted by the other Law Lords in the Privy Council to publish his disseuti-ng opinion [In Re : 'Par1ia~ mentary Privilege Act. I770. I958 AC. 331. Lotti Denning:

The Family Story fl93ll. pages 192-194].

Will it not make for certainty in .Lav~.-' if the higher courts write shorter judgments?

2?.

As against 243 pages of Judgment in .1 death penalty case by the United States Supreme Court, our Supreme Court has Written a 782 pages judgment in Keslwananda Bhatti V. State of Kerala [l973)4SCC 225. But in a latter case of death penalty {Gregg v. Georgia 428 US 153) when the United States Supreme Court chose to write per curiam opinion it covered hardly two pages of the Law reports. Lord Kilbrandon has observed that lack of economy in judgment writing is a notoriously discre- ditable fealure of the English jurisprudence, [Casselll 3: Co. v. Broome (1972) 1 All ER. 801 H.L.].

-Should an appellate court necessarily write a reasoned judg» ment-

2s.

29.

la} in every case irrespective of its outcome'?

(ti) only when it reverses the verdict of the lower court'? The practice of dismissing criminal appeals in limine with one word "dismissed" has been frowned upon by the Supreme Court (K. K. Jain v. State of Maharashtra (A.1.R. 1972 SJC. 243}, Salcharam V. State of Maharashtra (1969) 3S.C.R. 730, Shaikh Mohd. Ali V. State of Maharashtra {A.l.R. 1973 SC. 43}, Shankar v. Cr.-ingubai [A.l.R. 1976 SC. 2506). The prac.ti-cc in the United States Supreme Court of passing :1 Four word order "the jtidgment is at'ﬁrmed" has been criticised by Professor Gerald Guather as being 'irresponsible' and 'lawless'. (Doc V. Comrnonwealtlfs Attorney', The Brothren page 425].

Should not the statute provide for only.-' one appeal'?

Considering the congestion in courts views have been expressed that if fallibiiity is the raison detre providing for two appeals. a litigant would not be satisfied even if the statute ct;-nfers upon him the right to ﬁle multiple appeals.

Should matters involving a point of law of general public importance. leap-frog directly to the Supreme Court'?

Under the (U.K.) Administration of Justice Act, 1969. appeals 1eap.fmg direct to the House of Lords under certain circums-

32. Should the statute provide for a compulsory attempt to arrive at a compromise at the appellate stage'?

In U.S.A. a central funded scheme called the "Civil Appeal Management Plan (CAMP)"' was launched in December. 1973 to ascertain whether the appellate work load could be reduced by attempts to compromise made by an independent agency. The judges agreed that the CAMP did cause a reduction in the average time taken for the disposal of appeals because the dis- cussion which the stall counsel had with the opposing parties improved the quality of counsel preparation and narrowing down of the matters. in controversy. [Jerry Goldman, Asstt. Professor of the Political Science, Northwestern University, Columbia Law Review (1973) Vol. 78, page 1209].

33. The above questions mainly cover the problems of fresh institu- tions. As regards the disposal of arrears, can you suggest any method other than appointment of retired judges'.-' The proceeding questions focus on reducing fresh admissions and quicker disposal of pending matters. As regards the huge backlog of cases, a more or less uniform opinion has been ex- pressed that unless sufﬁeient number of judges are appointed. the arrears cannot be cleared.

34. Any other matter'?

It would be appreciated that it is well-nigh impossible to compress {H Li encompass in .9. questionnaire of this l._\.'p1:: all the pl'('|i)l€!'l'l.i relating to the judicial 3-'.j~,':»IeIn and hence your comments on any facet of the matter woulil be highly appreciated. Chief Jusliee of India has welcomed an objective analysis of the functioning of the judicial l11Sl.llttllOI15 in the country if a cgnstructivc ehmg: nu; d:.ice.l in thrir outlook. ('Presidential Add-"e:,s : Centenary Celebrations of the Natal! Marathi Vidyalaya, Pane : l--l-1982).

GI'9»'i--52--I I 6 LAD {'?1D},fS4---4~3-35-625.

30. 43 tances. American Cyaaamid Co. V. Upjohn Co.. [(1970) 3 All ER. 785]. a case conccming .11 petition for revocation of a patent was the first 'leap-frog' appeal heard by the House of Lords Lord Denning in a recent case of A.C.T. Construction Ltd. 1». Customs & Excise Commissioners [(1981) I W.I...R. 49 at 54] was disntaycd at the prospect of diﬂerent tribunals in Ll.'K. giving different rulings as to whether under-pinning work which involved construction of additional foundation fell within the ordinary and natural meaning; of the word 'maintenance? and wondered what Customs and Excise authorities shouid do when they are faced with conflicting decisions of various tribunals.

Should judicial review. revision or appeal against interlocutory order be abolished'?

31. Recently. the House of Lords observed that matters reaching them for preliminary decisions do not serve the cause of justice [Allen V. Gulfﬂii Ltd_, (1931) 2 W.L.R. 188 lH.L.] at page 190]. In the Urtited States of America. the "ﬁnal judgment rule" has been evolved to maximise available judicial resources and to avoid piecemeal litigation [U.S_ v. Nixon. -118 US. 633 at 690 (1974)]. The question as to what is an interlocutory order and whether an appeal lies has also given rise to difﬁculties (Amar Nath 1:. State of Haryana, AIR. 1977 SC. 2185 at 2190:

Motion La! v. Prern Chand. A.I.R. 1980 I-LP. 36 at 38'. Pranah Kumar v. Yusuf Ali. 1979 Cr. L}. 95 at 98: inagratullah Rirvi V. Rahimatuliah_ I98! Cr. L). i398}.

To what extent is the criticism that the Supreme Court is rever-

sing the High Courts in matters falling within lattcr's discretion justiﬁed'?

A judge of the Supreme Court expressed displeasure over the manner in which the Supreme Court interferes in small matters and thus arrogates to itself the jurisdiction of all subordinate courts and try to do eve-rjrthng itself. In UK. the Privy Council in a 3% page judgment dismissed on appeal in a murder case after refusing the counsel to make :1 new point [Ragho Prasad V, The Queen. (1981) l W.L.'R. 469] though in another murder case when an injustice of substantial character was brought to their notice, the Privy Council permitted a new point to be canvassed. [Ajodha V'. The State. (19811 2 All ER. 193 at 202]. While interfering with a conviction in a Magistrates court for it driving offence the High Court in England observed that it was the first case in which the sentence by the Crown Court had been challenged on the ground that it was harsh and oppres- sive. (R. v. Crown Court at St. Albans 1981 1 All ER. 802 at 804). American Law Professors are disntayed at the ten- dencv of the Appellate courts in allowing appeals and quot.- the ddmonition of a famous judge 'Never unnecessarily; make at monlrey out of a trial judge. Remember. he may be as goat! as a tawycr as you are'. (Appellate Review of Trial Court Dis- crction 7'9 Federal Rules Decisions. 1:. I73 at 1741. Sometimes strictures have been passed on the» tﬁﬂi illdﬁﬁ 133' 1113 HOUSE Of Lords describing his decision as 'astrmisliing' [B. v. W. H979) 3 All ER. 83].

ERR;-I TA Page {i} In line I, ﬁsr "MATHEU" read"MATHE'W".

Page ] --- In para L2, in line 18, for 'contra-resy' read 'controversy', Page 2 -- In para 1.6, in line 9, for 'for'rr-ad'far'.

Page 2 ---- In para 1.7, in tine 7, for 'M. N. Seervai' read 'H. '1'»-I. Seen-ai'. Page 4 -- In para 2.2, (it inline I, jbr 'state' read 'statedl

(ii) in line 9. for 'siting High Courts' read 'sitting High Court'.

Page 5 --_. In para 2. 5, in line 3, for 'anticipate the' re-rzd 'anticipate that the'. Page ID -- In para 3.13, iniine 13 jbr 'hence' read 'baucs'.

Page 12 ~-- In para 3.13', in [inc [7, for held' read'ho1d'.

Page [5 -- In footnote 1 for '2.23' read '3.23'.

Page 16 --- in para 3.33, {i} in line 3, for 'axiomatic' read 'axiomatic'.

(ii) in line: 3. for 'require' read 'requires'.

Page 16 -- In para 3.34.in line I0, ﬁlr 'dissenting' read'dissenting'. Page 16 --- In para 3.36, in line 2, for 'nut' read 'nor'.

Page I6 - In footnote 3, (it far 11959) U. S. 437' read '(1959} 359 U. S. 437'.

(ii) for 'discerning' read 'dissenting'.

Page I6 ----- In footnote 4, for 'Policies' read 'Politics'. Page I? ---- In para 3.37, (1') in line 14, far 'grouping' readgrnping'.

(ii) in line 18, far'Sr'.read 'D12'.

'Page 18 --- in para 3.39, inline 3, for 'briiliances' read 'brilliance'.

Page 18 ~-- In para3.4l,iu1ine 5, for 'artiiargf read 'ordinary'.

Page 23 ---- In para 5 .4, in lines 10 and 14, jbr 'procurou r' read 'procureuz'. Page 23 .-~ In para 5 .S., in line 9, for 'execution' read 'executive'.

Page 2'! --- In para 5.21, inlines II and [4, for 'ensures' read 'ensues'. Page 29 --- In para 6.1, in line 34, for 'expended and the' ret3d_'e1:pcnded on the'. Page 32 ------ In para 6.8-, in line 2, for 'censure' read 'ensure'.

Page 35 --- In line 4 from top, for 'I983' read '1932'.

Page 35 --- In para 1, in line 23, for 'on. beach' re<1d'enbai1c'.

Page 35 -- In para 2, in line 3, for 'arbitrat_or' read 'arbiter'.

Page 36 ----- In para 3, in line 2, for '23' read '33'.

Page 36 ~---- In para 4, in line L1, for '2 SCR 565" read' '2 SCC 565'.

Page 37 ---- In para 6, in line 12, for 'specious' read 'spacious'.

Page 37 H--- In para 9, (i) in line I3, for 'Associatecl're:zd 'Associate'.

(ii) in line 14, for 'go!' read 'get'.

Page 40 ---- In para 22, in lint: 6, for 'tend' read 'lead'. Page 42 _.-- In para 25,111 line 3, for 'George' rer:d"Gregg'. Page 42 ---- in para 2?, (1') in lint: 'P. fr.-i*'A|R1972SC'read 'AIR 1973 SC'.

(ii) in line 3, jar 119593 3 sea 73:)' reaa"[l969) 3 sec 730'.

(iii) in line I4, ft!-" 'Brethren' retro' 'Brethren'. I Page #4 ----- In pa1'a33, in {inc 4, for 'proceeding' read 'preceding'. GIPH--S2-1 16 LADfNDf84--29-B-B5-625.

Legal Document View

Unlock Advanced Research with PRISMAI

Law Commission Report

Constituional Division With Supreme Court-A Proposal For