Report No. 95
6.7. Machinery for allocation of business.-
The above point concerns the criteria to be adopted. It will also be necessary to create a machinery for allocating cases to the division concerned, on the criterion mentioned in the preceding paragraphs. The matter, we think, can be dealt with by a suitable provision in consequential legislation of the nature already indicated by us,1 or (if not so dealt with), by rules to be made by the Supreme Court.
Allocation of cases to the two divisions of the Supreme Court would not admit of any precise mathematical formula. While clear-cut cases may not present much difficulty in the matter of allocation, border-line cases are likely to pose a problem. That apart, there must be safeguard provided to check the ingenuity of Counsel who might endeavour to invoke (even if it be too tenuous or artificial an attempt), one or other constitutional provision so as to bring before the Constitutional division a case which does not properly belong to it. To avoid any such attempt, we would suggest that in the proposed machinery, a provision should be made which would require counsel appearing for a party to certify that a prior decision of constitutional issue is absolutely necessary for the disposal of that particular case.
In addition, we contemplate the appointment in the Supreme Court of a Senior District Judge as Additional Registrar, who would, from his experience and expertise, verify the certificate so issued by counsel. This would be an additional safeguard and would go a long way in preventing the Constitutional Division from being cluttered with other cases. In our opinion, it will be appropriate to give to the Chief Justice a power to create such a machinery and to regulate the details of such allocation. We would, in this context make the following concrete suggestions for settling controversies that may arise as to the division which should properly deal with a particular case:-
(i) If, after initial scrutiny of the case by the officer of the Supreme Court, suggested by us above, the case is allocated to the Constitutional Division in the Supreme Court and if the Constitutional Division is of the opinion that it is not a fit case to be decided by it, it may either dismiss the matter or put up the matter for orders of the Chief Justice for transferring the same to the Legal Division to be dealt with by it.
(ii) The same procedure may be followed in the converse case where a case is allotted to the legal Division which is of the view that the matter should be heard by the Constitutional Division.
These suggestions are made so that in case of any conflict between the Constitutional Division and any other Division in the Supreme Court as to which Division should deal with the particular case, the matter has to be placed before Hon'ble Chief Justice of India for his ultimate decision.
1. Paras. 4.4 to 4.7, supra.