Report No. 95
Law Commission of India
The 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).