Report No. 95

4.4. Constitutional aspect of the second parts of the proposal.-

The second part of the proposal for creating a constitutional division, contemplates that from the very beginning judges shall be appointed to a particular division. This would involve an amendment of the Constitution. This is for the reason that the scheme elaborated in this Report contemplates that the appointment shall be made by the President (and not merely an assignment by the Chief Justice 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."

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.