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Report No. 95

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.

Constitution Division within the Supreme Court Back

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