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Report No. 95

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.

Constitution Division within the Supreme Court Back

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