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Report No. 95

Chapter 6


6.1. The first issue: need for creating special division of the Supreme Court.-

The matters discussed in the preceding Chapters enable us to formulate the principal issues that need consideration and to make our recommendations thereon. The first issue, of course, is whether there is need for creating a Constitutional Division within the Supreme Court. It appears to us, on a consideration of the nature of constitutional adjudication and its importance in the Indian context, that if constitutional adjudication is to maintain a certain level of quality, consistency and coherence, the creation of such a division is a desideratum.

The peculiar characteristics of such adjudication have been dealt with by us at length in an earlier Chapter,1 and we need not repeat all that has been stated in that chapter. On giving due weight to the reasons set out in that Chapter, it appears to be desirable to create, within the highest court in the country, a machinery of a specialised character for constitutional adjudication-which is what a Constitutional Division envisages. It may be mentioned that Dr. Edward McWhinney, the eminent constitutional jurist, who was good enough to give us2 the benefit of his views, has, addressing himself to Q. 1(a) of our questionnaire, expressed himself thus:-

"Two dominant trends in democratic constitutionalism since 1945, as the record of comparative constitutional law experience amply demonstrates, are the institutionalisation of judicially-based control of constitutionality, as part of the general constitutional system of checks and balances; and the implementation of that judicial control of constitutionality (judicial review) through creation of a specialised constitutional tribunal having both primary and also appellate review jurisdiction over issues of constitutional law.

The question whether or not to opt for creation of a Special Constitutional Court cannot, however, be answered in the abstract, for it is a political-legal decision that must be made in the particular historical context of each national legal system and on a cost-benefit analysis of the legal pains and gains thereby involved. In the case of a national legal system that is already a going concern and fully operational, a disproportionate amount of political and legal energy may have to be expended and the quest for a special Constitutional Court, and it may be better to opt, instead, for the lesser benefits of incremental changes grafted on to the existing court system and simply augmenting its constitutional review competence and capacity."

1. Chapter 3, supra.

2. Para. 1.7, supra.

Constitution Division within the Supreme Court Back

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