Law Commission of India Report No. 95
Constitution Division within the Supreme Court - A Proposal for
Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by K.K. Mathew, Chairman, Law Commission of India, on March 1, 1984.
Chairman, Law Commission, Shastri Bhavan,New Delhi-110001. March 1, 1984.Shri Jagannath Kaushal, Minister of Law, Justice & Company Affairs, New Delhi. My Dear Minister,
I am forwarding herewith the Ninety-fifth Report of the Law Commission 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 Shri P.M. Bakshi, Part-time Member and Shri A.K. Srinivasamurthy, Member-Secretary, for their valuable assistance in the preparation of the Report.
With regards,Yours sincerely, Sd/- K.K. Mathew.
Constitution Division within the Supreme Court - A Proposal for
Introductory1.1. Scope and genesis.—The subject with which this Report is concerned is one of fundamental importance in the judicial system of the country and of direct relevance to the determination of constitutional controversies. Shortly 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 exclusively with matters of public law or, more narrowly, matters of Constitutional Law. The subject has been taken up by the Law Commission of India of its own, having regard to its importance. 1.2. Constitutional adjudication and its importance.—Detailed reasons for embarking upon an inquiry of this nature will be set out in due course.1 At this stage, it will be sufficient to state that the topic has been taken up for consideration in view of the growing importance that constitutional adjudication has assumed in the country. Any 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 a status of its own. It is not that this development 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 be 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 Judges who shall sit together for hearing and deciding such questions shall be five. They did see to it that that part of the Constitution which deals with the distribution of sovereignty between the Centre and the States, must receive an authoritative interpretation from the Supreme Court, and that if such a, controversy happens to arise between the Centre and the States or States inter se, the dispute should be 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 anxiety that a constitutional controversy should, in some form or other, come up before the Supreme Court, and should, in that forum, receive consideration at the hands of a minimum number of judges. 1. Chapter 3, infra. 1.3. Parliamentary approach.—This concern of the constitution makers for a proper machinery for the determination of constitutional questions was not overlooked by our Parliament. Very soon after the commencement of the Constitution, Parliament showed its awareness of the importance of constitutional adjudication by amending the two procedural codes to provide that such questions, if they 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. The underlying assumption.—Underlying this concern shown by the Constitutional makers, and by our Parliament with reference to constitutional controversies, is the implicit o 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 bones - such assumptions are never spelt out in so many words. They are not elaborated in lengthy sentences. They, in fact, do not need to be elaborated. These unspoken postulates are as vibrant as the spoken word. 1.5. Need for further examination.—These implicit assumptions, always to be regarded as speaking, need to be adverted to for considering whether the developments, of which we have spoken above,1 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. Para. 1.2, supra. 1.6. Issues.—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 in the preceding paragraph. These issues have been dealt with in the succeeding chapters of this Report followed by recommendations in the last chapter1 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-structuring. Nor is it its object to suggest any other changes for the sake of change. The inquiry is intended to examine how far the implicit assumptions with reference 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 efficiency of the process of such adjudication. 1. Chapter 6, infra. 1.7. Prior stages of the inquiry-the questionnaire.—As a matter of record, it may be stated that prior to the preparation of this Report, the Law Commission had issued a questionnaire1 with the object of eliciting views on a number of questions concerning the functioning of the Supreme Court and certain other aspects of the higher judiciary. We take this opportunity of thanking all those who have responded to the Questionnaire. We should particularly express our gratitude to Shri H.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 benefit of ascertaining the views of Dr. Edward McWhinney, the eminent constitutional lawyer, on the questionnaire. We took this opportunity since Dr. McWhinney had recently come to India and could find time to meet the Member-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. McWhinney has made a special study of constitutional adjudication and constitutional courts in the comparative perspective. We are grateful for the trouble he took. It was also our good fortune to have with us Mr. Justice Alexander Fera of the Constitutional Court of Yugoslavia, who had recently come to New Delhi. Mr. Justice 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 contained in our questionnaire, we were happy to find that he evinced keen interest in some of the problems that have been sought to be dealt with in the questionnaire. Of the questions raised in that Questionnaire, some were concerned with the machinery for constitutional adjudication, and the present Report has been prepared after keeping in view the replies received on the above questionnaire. Some of the important points made in the replies to the questionnaire will, in fact, be adverted to later,2 at the appropriate place. The other issues raised in that questionnaire are outside the scope of this Report, which is confined to the question of creation of a Constitutional Division within the Supreme Court. 1. Questionnaire issued by the Law Commission of India-See Appendix. 2. Chapters 2 and 4, infra. 1.8. Limited scope.—It is needless to say that the present Report does not purport to deal 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 a narrow one, as already explained.1 1. Paras. 1.2 to 1.7, supra. 1.9. Comparative material.—We may finally mention that in a subsequent Chapter, we are dealing, in brief, with the comparative position regarding constitutional adjudication in a few selected countries.1 1. Chapter 5, infra.
The Questionnaire and Replies Thereto2.1. The Questionnaire.—The Questionnaire that had been issued by the Law Commission1 elicited views, inter alia, on the question whether there should be created a Constitutional Court to decide constitutional questions. The replies to the questionnaire - the majority of them - do not favour the creation of a Constitutional Court. However, a large number of them have favoured the creation of a Constitutional 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 the Supreme Court.1 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 any such proposal would involve structural changes of a more extensive and complex character than those that would be 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. 1. Para. 1.7, supra. 2. For a list of those who have favoured the creation of such a division, see para. 2.2, infra. 2.2. Replies favour in creation of constitutional division of the Supreme Court.—As already state1 the idea of having a constitutional division within the Supreme Court has found favour with several persons and bodies that have responded to the questionnaire or with persons who have (though not in the form of a formal communication to the Law Commission) expressed their views in the matter. They favour the creation of a "constitutional division" a constitutional "wing" or "branch". These include-
(a) one retired Supreme Court Judge;2
(b) two sitting Chief Justices of High Courts;3
(c) two sitting High Court Judges;4
(d) one retired High Court Judge;5
(e) Law Department of one State;6
(f) one M.L.A.;7
(g) a distinguished economist;8
(h) one academic lawyer9
(he would confine the jurisdiction of the Supreme Court to constitutional matters and public interest litigation, with a permanent bench for each);
(i) one lawyers' association10 (it suggests the formation of a regular constitution Bench comprising the five seniormost judges, including the Chief Justice);
(j) one Secretary of a Chamber of Commerce and Industry11 (he suggests a Constitution Bench of not less than seven judges);
(k) a few Advocates;12
(1) one subordinate judicial officer;13
(m) some other persons.141. Para. 2.1, supra. 2. Law Commission Collection, pp. 1/2 and 1/3 (The Hindu, 8th February, 1982). 3. Law Commission Collection, pp. 1/88 and 1/143. 4. Law Commission Collection, pp. 1/153 & 1/154 (One of them suggests a constitutional bench of seven Judges). 5. Law Commission Collection, p. 1/4 (The Hindu, 8th February, 1982). 6. Law Commission Collection, p. 1/102. 7. Law Commission Collection, p. 1/93. 8. Law Commission Collection, p. 1/10.. 9. Law Commission Collection, p. 1/137. 10. Law Commission Collection, p. 1/139. 11. Law Commission Collection, p. 1/152. 12. Law Commission Collection, pp. 1/6 to 1/8, 1/98 to 1/100, 1/121 and 1/132. 13. Law Commission Collection, p. 1/153. 14. Law Commission Collection, pp. 1/9, 1/11, and 1/90. 2.3. Some clarifications with reference to points arising out of the questionnaire.—Some of the replies to the questionnaire have expressed an anxiety that the Supreme Court of India1 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,2 there is no questioi of making alterations in the Qualifications and modality of appointment of Supreme Court Judges, except such as are absolutely consequential on the creation of a separate division within the Supreme Court for constitutional matters.3 1. Law Commission Collection, p. 1/18 (A sitting Chief Justice). 2. Chapter 6, infra. 3. Para. 6.8, infra. 2.4. The question of arrears.—We may also mention that the questionnaire issued by the commission, covering as it did a very wide field,1 evoked, from a very eminent member of the bar,2 the comment that the Law Commission ought not to go into the question of establishing a Constitutional Court in an inquiry relating to speeding up of legal proceedings. The questionnaire further evoked the comment that since ordinary remedies 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. 1. Chapter 1, supra. 2. Law Commission Collection, p. 1/156 (Shri H.M. Seervai). 2.5. Object of the inquiry.—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 that the creation of a constitutional division would, to some extent, help in reducing 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 the realisation1 that constitutional adjudications 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 1. Chapter 3, infra. 2. See Chapter 4, infra. 2.6. Constitutional Council if feasible in India.—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.1 However, on a careful consideration, this does not appear to be an idea that can be appropriately included in the Indian Constitution. The composition and functions of the French Constitutional Council,2 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 determination of constitutional questions either by the hierarchy of ordinary courts culminating in the cour de Cassation, or by the hierarchy of administrative courts culminating in the Conseil de Etat. The position in India is not analogous in this regard. Moreover, the range, depth and variety of constitutional matters3, that have arisen so far in India - and may be expected to arise in future - under the Constitution, would be far beyond the type of body represented by the French Constitutional Council. 1. Law Commission Collection, p. 1/107. 2. See paras. 5.3 to 5.6 and 6.2, infra. 3. See para. 2.7, infra. 2.7. Example drawn from section 9, Hindu Marriage Act, 1955.— By way of example of the nature of controversies which might arise under the Indian Constitution and which may not be quite appropriately 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 - providing 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 France.
I. General Observations: Important Aspects of Constitutional Adjudication3.1. Aspects of constitutional adjudication.—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. Importance of constitutional adjudication.—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 controversies. 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.1 Mr. Justice Frankfurter's appellation-"a very special kind of court"2- applies almost to every court entrusted with the function of deciding constitutional questions. 1. A.S. Miller Supreme Court: Myth and Reality, p. 6. 2. Frankfurter The Supreme Court in the Mirror of Justice, (1957) 105 Univ Pona Law Review 781, quoted by A.S. Millar Supreme Court: Myth and Reality, p. 24. 3.3. Role of Court in development of constitutional jurisprudence.—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 difficult 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"1. Of the U.S. Supreme Court, it has been said that "the Court may be purseless and swordless, but its ability importantly to influence the way the nation functions has proved great, and seems to be growing all the time."2 1. Missouri v. Holland, (1920) 252 US 416 (435). 2. John Hart Ely Democracy and Distrust: A Theory of Judicial Review, (1980), p. 45. 3.4. Special features of constitutional adjudication.—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 non-constitutional adjudication. Because of these peculiarities, some considerations become of special relevance to constitutional adjudication. Of these, we may mention, by way of illustration, four, namely-
(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 dove-tail 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.
II. Specialisation3.5. Special approach.—Taking up the first consideration mentioned above1, namely, specialisation, it is necessary to state that the most important aspect is the need for special approach. Here, we would like to quote what was said by the famous economist Keynes, whose interests far transcended the realm of economics. Describing the role of the judge deciding a constitutional issue. Keynes said:
III. Constitutional Divisions in the Commonwealth and Elsewhere3.8. Constitutional divisions in the Commonwealth.—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 administrative law have come to be established in several jurisdictions but not constitutional divisions. 3.9. Suggestions made in Canada.—Specialisation with reference to constitutional adjudication has been stressed elsewhere also. In regard to Canada, a writer pleading for the establishment of a Constitutional Court, wrote some time ago as under1:
IV. The Issues in Constitutional Adjudication3.16. Wide scope of questions-views of Cohen, Jackson and Frankfurter.— A few words now about the nature of issues in constitutional adjudication. Morris Cohen has described these issues:-
V. The Element of Choice3.17. The aspect of choice.—The burden of the constitutional judge is thus a heavy 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 discoverable intention of those who wrote it. In constitutional adjudication, 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 absolutes". Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, 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 hold them, the more controversial the values, the Supreme Court is divided over them."1 1. Leonard W. Levy (Ed.) Judicial Review and the Supreme Court: Selected Essays, p. 197. 3.18. McCloskey's view.—Robert G. McCloskey has stated about the U.S. Supreme Court as under:-
VI. Consistency3.22. Consistency adjudication.—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 preceding paragraph about the importance and impact of constitutional adjudication. Consistency in such matters is 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. Meaning of "consistency".—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 precedent.1 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 underlying 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 discharged when there is functioning a specialised division, devoted exclusively to constitutional questions. 1. See also para. 3.29, infra, 3.24. Role of the court.—In such controversies, the role of the Court is that of articulating a broad norm which fits the facts of the dispute before it and also transcends that particular dispute. In this process, the Court is acting as a national conscience for the people of India, and not merely as an arbiter of insignificant disputes. A standard comes to be erected towards which men and governments can aspire. To the extent to which controversies reach the court, it could help articulate, in broad principle, the goals of Indian society. 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 important that they are enabled to develop the broad approach demanded in constitutional adjudication. 3.25. The ultimate "spokesman".—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.1 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 situations, even in irrelevant situations. 1. Robert A. Dahl Decision-making in a Democracy, in Levy (Ed.) Judicial Review and the Supreme Court, p. 179. 3.26. Expounding of vague generalities.—Sam Ervin Jr. emphasised the role of the Court as expounding the "vague generalities" of the constitution, in these words:-
VII. Evolution of Constitutional Jurisprudence3.31. Constitutional jurisprudence.—The third consideration to which attention may be usefully drawn is the need for systematic evolution of constitutional jurisprudence. It is desirable that such jurisprudence should be allowed to evolve as a self-contained 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. 3.32. Differences from ordinary law.—Constitutional law does not have the simplicity of ordinary law-a point that has been already made while stressing the need for specialisation.1 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. 1. Paras. 3.5 to 3.7, supra.
VIII. Time3.33. Time.—The fourth and last consideration of special interest to constitutional adjudication is that of time. It is axiomatic that anything which requires serious reflection, requires 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 complexity of the issues involved;
(2) the impact that an adjudication of a constitutional issue in a particular 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. Complexity of the issues.—As society becomes complex, the issues that come up for constitutional adjudication will also tend to become complex. The Court may become immersed in the "travail of society"-a phrase aptly used by Pekelis.1 This means that much more will be demanded of the law, because the public expects much more of it. Judges should therefore have adequate time and ease of mind for research, reflection and consideration. In reaching judgments, they need time for critical review when draft judgments are prepared: and they need further time for clarification and revision in the light of all that has gone before. In one of his dissenting judgments, Mr. Justice Frankfurter said, "The far-reaching and delicate problems that call for the ultimate judgment of the nation's highest tribunal require vigour of thought and high effort and their conservation, even for the ablest of Judges."2 1. Alexander Pekelis The Case for a Jurisprudence of Welfare, in Konvits (Ed.), Law and Social Action, 1, 40, cited by A.S. Miller Supreme Court: Myth and Reality, p. 195. 2. Dick v. N.Y. Life Ins. Co., (1959) 359 US 437: 3 L Ed 2nd 935 (948) (Frankfurter, J. dissenting). 3.35. Analysis requires time.—Time is required not only for the primary task of analysing in detail the materials on which the Court relies. It is equally required for adequate reflection upon the meaning of those materials and their bearing on the issues now before the Court. Reflection is a slow process; wisdom, like good wine, requires maturing. 3.36. Collective judgments.—Moreover, the judgments of the highest Court are collective judgments. They are neither solo performances, nor 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 formulation in learned and impressive opinions."1 1. Dick v. N.Y. Life Ins. Co., (1959) 3 L Ed 2d 935 (949). See also Schubert Constitutional Politics, pp. 149-150. 3.37. Need for leisure-Views of Bickel and Griswold.—Alexander Bickel has pointed out that judges have, or should have, the leisure, the training, and the inclination to follow 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 from 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. Griswold1 has also stressed the need for leisure in these words:-
VIII. The Benefits Summed up3.38. The experience of an event.—It is well-known that between a particular event and a person to whom the event happens, the nature and intensity of the reaction depends not merely on the event, but also on what 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 may be able to give his best, he should have enough time. He should have the 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 measurable 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. Factors accounting for greatness in the law.—As has been said, greatness in the law is not a standardised quality; nor are the elements, that combine to attain it, "................greatness may manifest itself through the power of penetrating analysis exerted by a trenchant mind, as in the case of Bradley; it may be due to persistence in a point of view forcefully expressed over a long judicial stretch, as shown by Field; it may derive from a coherent judicial philosophy, expressed with pungency and brilliance, reinforced by the Zeitgeist, which, in good part, was itself a reflection of that philosophy, as was true of Holmes; it may be achieved by the "resourceful deployment of vast experience and an originating 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."1 1. Walter F. Murphy and C. Harman Pritchstt Court, Judges, Policies, 2nd Edn., pp. 179-180. 3.40. Creating a climate.—No reforms in structure can bring into existence these qualities, where they do not exist. But they can help in the creation of a climate which will make them blossom, where they exist in the seed. 3.41. Demands of the judicial process in regard to ordinary law.—Our emphasis on certain aspects of constitutional adjudication should not be understood as, in any manner, attributing a lesser importance 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 ordinary legal issues. Specialisation may becr,rne 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). Again, 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 criminal 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-making. 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 first 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-constitutional law. But, at the same time, as we have pointed out, the decision of a constitutional question may have far-reaching repercussions, both in point of time and in point of space. Besides this, an expounding of the Constitution is an expounding 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 reflection and mature collective judgment, should be given special attention in constitutional adjudication, because, in such adjudication, they are more eminently needed than everywhere else.
Amendment of the Constitution4.1. Constitutional Division-Need for Constitutional amendment.—We should mention at this stage that if 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 246(1) of the Constitution, Parliament has exclusive power to make laws with respect to the matters enumerated in the Union List. Entry 77 of the Union List reads as under:-
Constitutional Courts on the Continent5.1. Constitutional Court.—The idea of a Constitutional Court is not something new. Some of the continental countries have these courts and as such it was in the context of these examples the Questionnaire was issued. The continental experience provides enough justification for embarking on this study for which the Questionnaire was issued. Before we proceed to make our recommendations, it may be of interest to have a look at the Courts functioning on the Continent, under the title of "Constitutional Courts". Of course, even outside the continent, constitutional adjudication is a familiar phenomenon. The Supreme Court of U.S.A. which is pre-eminently a constitutional tribunal, is an outstanding example. However, for the present purpose, courts titled as "Constitutional Courts" are of special interest. 5.2. Austria.—Constitutional Courts exist in a number of countries on the Continent. Alphabetically, one can begin with Austria.1 The Constitutional Court of Austria has a very wide jurisdiction. It not only decides constitutional issues, which are set out in detail in Austrian Constitution, but has, in addition, out interesting species of jurisdiction. The Constitution of Austria provides (in Article 145) as under:-
(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 seizures rendered in 1977; and
(d) perhaps the ruling of the constitutional Council on the application of the constitutional principle of self determination (Article 53) to the proposed secession of one of the territories rendered in 1975.21. Article 56, Constitution of France. 2. Edward McWhinney, Book Review, in (Summer 1981), Vol. 29, No. 3, AJCL 535, 536. 5.6. Constitutional Council not feasible in India.—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 view1 that it is not possible to have any such institution in India, having regard to the essential features of our Constitution. 1. Para. 2.6, supra. 5.7. The Constitutional framework in West Germany.—We now come to West Germany. The basic law for the Federal Republic of Germany lays down the structure of the Federal Republic, her organs and their functions. It includes the basic rules according to which all national life in the Federation and the Federal Laender is to run its course, and above all, it lists the basic rights and liberties to which the individual citizen is entitled. It 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 accorded the Third Power a particularly strong status. They have established a constitutional jurisdiction 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 Justice-e.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 Germany-a Constitutional Court made institutionally independent has been created for this purpose, viz. the Federal Constitutional Court, which was inaugurated in 1951. Like the Federal Court of Justice, it sits in Karlaruhe. 5.8. The Court in the eyes of the public.—Although still a relatively Young Institution-the West German Constitutional Court came into being in 1951-it soon established itself as an institution in the eyes of the public, chiefly because of its jurisdiction in fundamental human rights.1 1. Gilbert Brinkmann The West German Constitutional Court, (Spring 1981), Public Law 83. 5.9. Competence.—The legal bases for the activity of the Federal Constitutional Court are Articles 92-94, 99 and 100 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 Constitutional Court1 can be divided into the following four groups:
(a) Norm-checking procedure; [Article 93(1), para. 1].
(b) Dispute procedure of Constitutional organs, between the Federation and individual Laender, and between Laender; [Article 93(1), paras. 2, 3, 4].
(c) Complaint of unconstitutionality; [Article 93(1), paras. 4a, 4b].
(d) Other procedures (Article 93, para. 5).1. Para. 5.10, infra. 5.10. Jurisdiction in West Germany.—The (West) German Constitution has the following provision that defines the jurisdiction of the Constitutional Court of the Federal Republic of Germany1 as under:-
1. On the interpretation of this Basic Law in the event of disputes 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 compatibility 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;
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 by the Laender and in the exercise of federal supervision;
4. On other disputes involving public law, between the Federation and the Laender, between different Laender or within a Land, unless recourse to another court exists;
4a. On complaints of unconstitutionality, which may be entered by any person who claims that one of his basic rights or one of the rights under paragraph (4) of Article 20, under Articles 23, 38, 101, 103 or 104 has been violated by public authority;
4b. On complaints of unconstitutionality, entered by communes or associations of communes on the ground that their right to self-government under Article 28 has been violated by a law other than a Land Law open to complaint to the respective Land Constitutional Court;
5. In the other cases provided for in the Basic Law.(2) The Federal Constitutional Court shall also act in such cases as are otherwise assigned to it by federal legislation."
(1) The Federal Assembly and the republican assemblies;
(2) The Federal Executive Council and the republican executive councils, except when the constitutionality of laws passed by their assemblies is being judged;
(3) The Supreme Court of Yugoslavia and the other Supreme Courts of the Federation, as well as the republican supreme courts, if the point of constitutionality and legality ensues in court proceedings;
(4) The Federal public prosecutor, if the point of constitutionality and legality ensues in the work of the public prosecution;
(5) The republican constitutional courts;
(6) The assembly of a social-political community, or a working or other autonomous organisation, if any of their rights established by the Constitution of Yugoslavia have been violated.
Recommendations6.1. The first issue: need for creating special division of the Supreme Court.—The matters discussed in the preceding Chapters enable us to formulate the principal issues that need consideration and to make our recommendations 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,1 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 a specialised character for constitutional adjudication-which is what a Constitutional Division envisages. It may be mentioned that Dr. Edward McWhinney, the eminent constitutional jurist, who was good enough to give us2 the benefit of his views, has, addressing himself to Q. 1(a) of our questionnaire, expressed himself thus:-
(a) Constitutional Division, and
(b) 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-constitutional matters. If any other and more appropriate name can be devised, there should be no objection to it. 6.4. The second issue: jurisdiction of the proposed divisionrecommendation.—If the proposed constitutional division is to be created, it will have to be assigned a part of the business of the Supreme Court within its jurisdiction 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 alternative is accepted, its jurisdiction would comprise
(i) every case involving a substantial question of law as to the interpretation of the Constitution,1 or an order or rule issued under the Constitution;
(ii) every case involving a question of constitutional law, not falling within (i) above;2
(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 136 of the Constitution (whether such tribunal is created by a law passed by virtue of Article 323A or Article 323B of the Constitution or otherwise), where a question of administrative law is involved.
(b) In the alternative, only matters of Constitutional law may be assigned to the proposed Constitutional Division. If this alternative is accepted, its jurisdiction would comprise only the items at (i) and (ii) mentioned in (a) above. The jurisdiction would then cover only the following:
(i) 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 preference is for alternative (b) above. It is easier to define precisely 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 of the proposed division narrow and compact, at least for the present. 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 follows that other matters coming to the Supreme Court will be assigned to its Legal Division. 1. Compare Article 132 of the Constitution. 2. Item (ii) would be needed for covering, for example, enactments supplementing the Constitution. 3. Compare Article 132 of the Constitution. 6.5. Criterion to be adopted for determining when constitutional issue involved.—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, namely, (i) when can a constitutional issue be said to be "involved", and (ii) what will be the machinery for allocating cases as between the 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 constitutional 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. 6.6. Criteria laid down in U.S.A.—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 questions. These have been conveniently collected in the judgment of Brandois, J. in one of the decisions of the U.S. Supreme Court.1 One of the propositions laid down is-
(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 Constitutional Division in the Supreme Court and if the Constitutional Division is of the opinion that it is not a fit case to be decided by it, it may either dismiss the matter or put up the matter for orders of the Chief Justice 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 be placed before Hon'ble Chief Justice of India for his ultimate decision. 1. Paras. 4.4 to 4.7, supra. 6.8. Legality of disposal not to be questioned.—We also consider it necessary that there should be inserted, at the appropriate place, a provision which will, in effect, censure,1 by employing suitable legislative language, that the validity of the disposal by a division of the Supreme Court of a case assigned to it shall not be questioned merely on the ground that-
(a) the case disposed of by the Constitutional Division did not involve a question of constitutional law, or
(b) the case disposed of by the Legal Division involved a question of constitutional law.Such situations will be very rare, particularly if the procedure suggested by us is adopted.2 Nevertheless, it is proper to have such a provision, in order to avoid possible challenges. 1. This is not a draft of the provision contemplated. 2. Para 6.9, supra. 6 9. The third issue: composition of the Constitutional Division.-The third issue that arises concerns the composition of the proposed Constitutional Division. Our recommendations in this regard are as under:-
(a) The Constitutional Division should consist of not less than seven Judges, subject to what is stated in (b) below.
(b) In matters requiring more than seven Judges or similar situations, the Chief Justice of the Supreme Court should have the power to assign temporarily Judges to this division from the other division. If there is a temporary increase in the work of the other division, the Chief Justice should have a power to assign temporarily a Judge from the Constitutional Division to the other Division.
(c) The Judges belonging to and functioning in, the Constitutional Division should sit en banc for hearing all cases assigned to that Division.6.10. The fourth issue: qualification of judges.—The 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, bodies 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: posting of judges to each Division.—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:
(a) A judge may, from the date of his very appointment, be appointed to a particular division for his entire judicial 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 be transferable inter se.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 temporary adjustments as already recommended,1 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 is stated above. 1. Para. 6.9, supra. 6.12. Chief Justice to be entitled to sit in any division.—Sixthly, as regards the Chief Justice, he should be entitled to sit in either division of the Supreme Court, whatever be the division to which he may have been assigned on his initial appointment to the Supreme Court. 6.13. Transitional provisions.—Apart from the above substantive provisions, transitional provisions 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) saving or other provisions regarding pending cases.6.14. Amendment of the Constitution and consequential provisions.—The recommendations that we have set out in this Chapter are subject to, and are to be read along with, certain recommendations made in an earlier Chapter when discussing the need for constitutional amendment and consequential provisions.1 K.K. Mathew Chairman. J.P. Chaturvedi Member. Dr. M.B. Rao Member. P.M. Bakshi Part-time Member. Vepa P. Sarathi Part-time Member. A.K. Srinivasamurthy. Member-Secretary. Dated: 1st March, 1984. 1. Paras. 4.4 to 4.7, supra.
Law Commission of India
QuestionnaireThe background notes appearing below each of the questions do not represent the views of the Commission and have been appended so as to raise issues and promote discussion. Replies to be sent to V.V. Vaze, Member-Secretary, Law Commission, 730-'A' Wing, Shastri Bhavan, New Delhi-110001 by 1st June, 1982. 1. (a) 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)?
(c) What should be the qualifications and modalities of appointment as a Judge of that court?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 majority. The Court has been criticised as being subservient to the Government of the day and if 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 Constitutional Court: Political Control Through Judges, Gisbert Brinkman (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 en banc in each and every case. Even in U.S.A. leading advocates find it difficult 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 arbiter 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 affecting the various segments of the variegated populace of this subcontinent. 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. In England during 1970s the average number of appeals heard annually by the House of Lords has been only 33 so that the Judges could devote greater time to matters of public importance. 4. Do you feel that the Supreme Court is acting as a third chamber? The judiciary appears to have been divided into two classes: the activists who believe that if the legislative text is too bold to be self acting the Judges must make the provisions viable by evolution of supplementary principles even if it may appear to possess the flavour of law making [Rajendra Prasad v. State of U.P., AIR 1979 SC 916 (924)]. The other school of strict constitutionalists does not countenance reading into a statute conditions which are not to be found therein by process of construction, [Gurbaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 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 Weelde, (1981) 2 WLR 821 (842)]. Some legal writers feel that the court speculates and pontificates about society and economics mostly from non-evidence, without staff investigation, opinions of experts on law enforcements, industry and in general without the tools necessary for legislative work. 5. Have the judgments of the Supreme Court regarding compensations payable upon the abolition of feudal rights brought to ought the process of social reform? One of the Judges 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 ER 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 professional criminal loose to prey upon society with impunity and a theory is gaining ground that the court has no business forcing its views on the State because it lacks accountability and is not the voice and conscience of contemporary society. 6. 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 a District 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 Court-Bob Woodward and Scott Armstrong-for short 'Brethren' p. 277-278). Opinions have been expressed that if the Supreme Court had not entertained the challenge to the Bearer Bond Scheme, Government could have raised resources to the tune of Rs. 1,000 crores. In New Zealand fast-track legislation like the National Development Act, 1979, limits judicial challenges to works of national importance. The judgment of the Supreme Court stalling the attempt of the Maharashtra 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 entitled to alternative accommodation? What Judges will do if trespassers set up shanties in the spacing lawns of the Court or their houses?" 7. Should appointees to judgeships of Supreme Court and High Courts have a political background? Earl Warren was a former crusading prosecutor, three-term Governor of California and Republican Vice-Presidential nominee with the result that when he was appointed as Chief Justice of the Supreme Court of the United States of America, some felt that he had a greater impact on the country than even some Presidents. In Italy a constitutional court which has come into existence in 1955 consists of 15 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. 8. 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 modern 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 Oxbridge and then called to the Bar. [K. Eddey's English Legal System, 2nd Edn., 1977]. In India the Chief Justices are criticised for recommending lawyers belonging to a particular caste or group for judgeship. 9. 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 of the poor financial benefits. Even in the United States of America the salaries of Supreme Court Judges are very much lower than'the emoluments of leading lawyers and Justice Fortes had to suffer 90 per cent cut in his emoluments when he was appointed as Judge of the Supreme Court. [The Brethren-page 20]. The Chief Justice of the United States gets a salary of $ 92,400 while the Associate Judges get $ 88,700 per annum. Sometimes the Chief Justices of the State Supreme Courts were getting salaries more than that of the Chief Justice of the United States. Some bright boys fresh out of a law school were starting at $ 40,000 a year while law firm partners in the age group 49-51 were making $ 194,600 on the basis of 90th percentile. Even amongst the federal Judges who get a salary of about $ 57,500. 7 had resigned in the 1950s 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. 10. Is much of the delay in the courts occasioned by lawyers seeking adjournments on flimsy grounds? 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. 11. Should the Supreme Court evolve its own procedure in criminal cases? 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, (1980-81) 85 CWN (Editorial Notes) 85. 12. Is not much of the time of the Supreme Court and High Courts taken 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 1.18. 13. Presently the judicial system is based on the Anglo-Saxan jurisprudence. Should it be replaced by an Indian system of Administration of Justice? The present judicial system has sometimes 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 hammei and tongs at the contents of the recent lectures delivered by the American Lawyer Abrams and the English Judge Lord Templeman labelling it as irrelevant to the country and branding the invitation to these lectures as "fraternising by a handful of judges, advocates and journalists thwarting the emergence of an indigenous Third World legal system". (Hindustan Times, 29th December, 1981, page 9). Ever so, no concrete suggestions have been offered spelling out as to what exactly is meant by 'Indianising of the judicial system'. 14. Do you feel that the High Courts grasp at jurisdictions in matters where the petitioner has not exhausted an equally efficacious remedy provided by the relevant statute? The principle that a petitioner must exhaust all the equally efficacious statutory alternative remedies not being unduly onerous before coming to a court is well settled. (Than Singh v. Collector of Customs, AIR 1964 SC 1419; British I.S.W. Co. v. Jasjit Singh, AIR 1964 SC 1451; K.K. Srivastava v. D.K. Jain, AIR 1977 SC 1703). However, the ambit of the expression 'equally efficacious' has given rise to difficulties of interpretation. [Malwa Vanaspati & Chemical Co. Ltd., Indore v. Union of India, 1980 MP LJ 84; Meteor Satellite Ltd. v. I.T.O. Companies Circle-II, Ahmedabad (1980) 121 ITR 311 (Guj); Tapan Kumar Jana v. The General Manager, Calcutta Telephones, 1980 Lab IC 508; Bavaji and Molibbai v. Inspector of Central Excise, 83 CWN 689; Rabindra Nath Mukherjee v. S.R. Das, 1979 Lab IC 1287; Ashok Industries v. State of Bihar, AIR 1979 Pat 217; Dharam Singh v. Bank of India, 1979 Lah IC 1079; K.S. Siddalingaiah v. State of Karnataka, AIR 1979 Kar 190]. Justice Frankfurter felt that it is imperative that the docket be kept down so that its volume does not preclude wide adjudication. In England the House of Lords has been hearing about 33 appeals per annum: while looking at the pendency in our higher court, a criticism is being levelled that they 'assume role of a knight errant' grasping at jurisdiction by entertaining any case. 15. Can the judicial process be scientized? 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 technology?" There are attempts to computer-predict appellate decisions by remote psychoanalysis of the panel of judges i.e. by reading the tea leaves in their prior opinions. (Needed: A judicial welcome for technology-Star Wars or State decisions, by Hon. Howard T. Harkey, 79 Federal Rules Decisions, 1979, page 209). 16. Do you feel that some leading advocates take up most of the court's working time arguing for interim relief in cases having no merits and thus upset the day's regular fixtures? In April 1981, Chief Justice of India sharply 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. 17. Has the practice of 'Bench fixation' by lawyers, taken roots in the Supreme Court and the High Courts? Two of the Judges of the Supreme Court have brought into focus a current practice among the lawyers to ensure that certain cases are listed before a particular Bench and that in collusion with the Registry officials non-urgent matters are given precedence. 18. Are 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? Rule 6 of Chapter 11 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, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-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 practising in that court to file a vakalatnama on their behalf and secure a transfer of the case. 19. Are over-zealous Government departments responsible for increasing the court's calendar? 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. Justice Walton gave vent to the uncomfortable feeling that the Crown spends so much time and effort persecuting minnows that it is small wonder there is no energy left to pursue the real sharks. 20. Should the Supreme Court encourage public interest litigation? Dinosaur cases of Bombay pavement dwellers, conditions 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. 21. Will it facilitate disposal of a greater number of cases if oral arguments are restricted to half an hour each side? 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 half an hour on either side. An exception was made in desegregation cases where twice the normal time was allowed. (The Brethern, pp. 2, 41). 22. Will a procedural requirement making it obligatory on counsel to file written, briefs to cut down the oral arguments? 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 lead 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 desk and the practice of reading law reports in court in extenso would disappear. 23. Should some appeals be disposed of without hearing oral arguments? In the Supreme Court of Iowa, 66 cases were submitted to the court in 1973 without oral arguments which total increased to 128 in 1974. Even where oral arguments were permitted lawyers were allowed 10 to 15 minutes, for arguing each side and an additional five minutes for appellant's rebuttal. (Appellate Congestion in Iowa: Dimensions and Remedies Hon'ble Mark Me Cormick, 25 Drake Law Review, 1975-76, p. 133). 24. Will it not make for better interpretation of statutes if the rule putting an embargo against citing of debates in Parliament as a legitimate aid to construction is abrogated? The time honoured practice of the English rules of interpretation of statutes that Hansard can never be relied by the court in construing a statute or for any other purpose is being challenged in England. Lord Denning thought of a way of overcoming the obstacle by referring to the debates quoted in the works of jurists [Regina v. Local Commissioner, Ex-parte Brandford Council, (1979) 1 QB 387]. But this device of looking into a text book containing the quotation from Hansard has been criticised by a writer as 'not edifying' [Statutory Reform: The Draftsman and the Judge-(1981) 30 ICLQ 141 (163)]. The Indian Law closely followed the English Law [Administrator-General of Bengal v. Premlal Mullick, ILR 22 Cal 788 (PC) 799 (800)]. But pleas have been made for whittling down the rule [State of Mysore v. R.V. Bidap, AIR 1973 SC 2555; Fagu Shaw v. State of West Bengal, AIR 1974 SC 613 (629)]. But sometimes even speeches of Ministers while piloting a Bill are not looked into [Satpal & Co. v. Lt.-Governor of Delhi, (1979) 4 SCC 232 (245)]. Lord Devlin has cited an instance [Stafford v. D.P.P., 1974 AC 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 at All Souls College, Oxford on 2nd May, 1978 quoted in Devlin: The Judge (1979), pp, 148]. 25. Should the present practice of plurality and separate judgments be substituted by one of writing-
(a) Per curiam opinion;
(b) a single judgment representing the highest common denominator of the bench;
(c) one majority and one minority opinion?The separate opinions delivered by the Supreme Court in Delhi Laws Act case (AIR 1951 SC 332) 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, AIR 1952 SC 123). It was given to Bose, J. to analyse the several situations and indicate how the judges split on each situation (Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569). The plurality decision regarding death penalty case gave rise to considerable difficulties in the United State of America (Gregg v. Georgia, 428 US 153; Furman v. Georgia, 408 US 238) as well as in our Supreme Court (Rajendra Prasad 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 replaced by "Redeeming social value" test (Roth v. United States, 354 US 476; Fanny v. Hill, 383 US 413. United States v. Marks, decision of Court of Appeals for Sixth Circuit, quoted in Columbia Law Review; May 1980 at page 777). Lord Denning was also not permitted by the other Law Lords in the Privy Council to publish his dissenting opinion [In Re: "Parliamentary Privilege Act, 1770, 1958 AC 331, Lord Denning; The Family Story, (1981), pp. 192-194]. 26. Will it not make for certainty in Law if the higher courts write shorter judgments? As against 243 pages of Judgment in a death penalty case by the United States Supreme Court, our Supreme Court has written a 782 pages judgment in Keshvananda Bharti v. State of Kerala, (1973) 4 SCC 225. But in a later 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 discreditable feature of the English jurisprudence [Casselll & Co. v. Broome, (1972) 1. All ER 801 HL]. 27. Should an appellate court necessarily write a reasoned judgment-
(a) in every case irrespective of its outcome?
(b) 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, AIR 1973 SC 243; Sakharam v. State of Maharashtra, (1969) 3 SCC 730; Shaikh Mohd. Ali v. State of Maharashtra, AIR 1973 SC 43; Shankar v. Ganaubai, AIR 1976 SC 2506). The practice in the United States Supreme Court of passing a four word order "the judgment is affirmed" has been criticised by Professor Gerald Guather as being 'irresponsible' and 'lawless', (Doc v. Commonwealth's Attorney, The Brethren, pp. 425). 28. Should not the statute provide for only one appeal? Considering the congestion in courts views have been expressed that if fallibility is the raison detre providing for two appeals, a litigant would not be satisfied even if the statute confers upon him the right to file multiple appeals. 29. 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 leap-frog direct to the House of Lords under certain circumstances. American Cyanamid Co. v. Upjohn Co., (1970) 3 All ER 785 a case concerning a 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. v. Customs & Excise Commissioners, (1981) I WLR 49 (54) was dismayed at the prospect of different tribunals in U.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 should do when they are faced with conflicting decisions of various tribunals. 30. Should judicial review, revision or appeal against interlocutory order be abolished? Recently, the House of Lords observed that matters reaching them for preliminary decisions do not serve the cause of justice [Allen v. Gulf Oil Ltd., (1981) 2 WLR 188 (HL) 190]. In the United States of America, the "final judgment rule" has been evolved to maximise available judicial resources and to avoid piecemeal litigation [U.S. v. Nixon, 418 US 683 (690) (1974)]. The question as to what is an interlocutory order and whether an appeal lies has also given rise to difficulties (Amar Nath v. State of Haryana, AIR 1977 SC 2185 (2190); Mohan Lal v. Prem Chand, AIR 1980 HP 36 (38); Pranab Kumar v. Yusuf Ali, 1979 Cr LJ 95 (98); Inayatullah Rizvi v. Rahimatullah, 1981 Cr LJ 1398). 31. To what extent is the criticism that the Supreme Court is reversing the High Courts in matters falling within latter'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 everything itself. In U.K. the Privy Council in a 31/2 page judgment dismissed an appeal in a murder case after refusing the counsel to make a new point [Ragho Prasad v. The Queen, (1981) 1 WLR 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, (1981) 2 All ER 193 (202)]. While interfering with a conviction in a Magistrate's court for a 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 oppressive. [R. v. Crown Court at St. Albans, 1981 1 All ER 802 (804)]. American Law Professors are dismayed at the tendency of the Appellate courts in allowing appeals and quote the admonition of a famous judge 'Never unnecessarily make a monkey out of a trial judge. Remember, he may be as good as a lawyer as you are. (Appellate Review of Trial Court Discretion 79 Federal Rules Decisions, p. 173 at 174). Sometimes strictures have been passed on the trial judge by the House of Lords describing his decision as 'astonishing' [B. v. W., (1979) 3 All ER 83]. 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 discussion which the staff counsel had with the opposing parties improved the quality of counsel preparation and narrowing down of the matters in controversy [Jerry Goldman, Asst. Professor of the Political Science, Northwestern University, Columbia Law Review (1978), Vol. 78, p. 1209]. 33. The above questions mainly cover the problems of fresh institutions. As regards the disposal of arrears, can you suggest any method other than appointment of retired judges? The preceding 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 expressed that unless sufficient 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 and encompass in a questionnaire of this type all the problems relating to the judicial system and hence your comments on any facet of the matter would be highly appreciated. Chief Justice of India has welcomed an objective analysis of the functioning of the judicial institutions in the country if a constructive change was decided in their outlook. (Presidential Address: Centenary Celebrations of the Nutan Marathi Vidyalaya, Pune: 1-1-1982).