Report No. 95
6.4. The second issue: jurisdiction of the proposed divisionrecommendation.-
If the proposed constitutional division is to be created, it will have to be assigned a part of the business of the Supreme Court within its jurisdiction as at present provided. The second issue that falls to be considered is, what matters should be assigned to that division. In this connection, there are two principal alternatives to be considered as per (a) and (b) below:-
(a) This division may be entrusted with the adjudication of all public law cases within the Supreme Court's jurisdiction. If this alternative is accepted, its jurisdiction would comprise
(i) every case involving a substantial question of law as to the interpretation of the Constitution,1 or an order or rule issued under the Constitution;
(ii) every case involving a question of constitutional law, not falling within (i) above;2
(iii) every appeal against the decision of a High Court, rendered under Article 226 of the Constitution;
(iv) every appeal against the decision of a tribunal under Article 136 of the Constitution (whether such tribunal is created by a law passed by virtue of Article 323A or Article 323B of the Constitution or otherwise), where a question of administrative law is involved.
(b) In the alternative, only matters of Constitutional law may be assigned to the proposed Constitutional Division. If this alternative is accepted, its jurisdiction would comprise only the items at (i) and (ii) mentioned in (a) above. The jurisdiction would then cover only the following:
(i) every case involving a substantial question of law as to the interpretation of the Constitution3 or an order or rule issued under the Constitution, and
(ii) every case involving a question of constitutional law, not falling within (i) above.
Our preference is for alternative (b) above. It is easier to define precisely and locate such matters, confined to constitutional law proper. We appreciate that questions of constitutional and administrative law often dovetail into each other, particularly in proceedings under Article 226 of the Constitution (which may reach the Supreme Court on appeal). But, in our opinion, it would be desirable to make the jurisdiction of the proposed division narrow and compact, at least for the present. Accordingly, we recommend that the proposed Constitutional Division of the Supreme Court should be entrusted with the cases of the nature mentioned in alternative (b) above. It follows that other matters coming to the Supreme Court will be assigned to its Legal Division.
1. Compare Article 132 of the Constitution.
2. Item (ii) would be needed for covering, for example, enactments supplementing the Constitution.
3. Compare Article 132 of the Constitution.