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Report No. 95

3.10. Late emergence of public law.-

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 concerning the powers of the sovereign and the working of Governmental machinery, disputes concerning the inter-play of Government agencies-all matters that form the core of constitutional law and administrative law-must have arisen in ancient times as well. The unmatched original thinking of Plato about the State, the vast and comprehensive study made by Aristotle about "Constitutions", and the grand kaleidoscope of statecraft and the science of government to be found in Kautilya, probably had their counterparts 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 specialising in that division of law. The rules did exist, and have existed for centuries. But they did not carry a label of their own, they did not have their individual appellations. Rules defining the liberties of citizens vis-a-vis the State were inter-mixed with ordinary rights and liberties of the citizen-a point lucidly 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, therefore, been seriously thought of in Commonwealth jurisdictions. Until recently, guarantees of fundamental rights were also almost non-existent in major Commonwealth jurisdictions. No practical need, therefore, arose to think of a specialised division concerned with the violations of such guarantees.

Constitution Division within the Supreme Court Back

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