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Report No. 95

Constitution Division within the Supreme Cour - A Proposal for

Chapter 1 Introductory
1.1 Scope and genesis
2. Constitutional adjudication and its importance
3. Parliamentary approach
4. The underlying assumption
5. Need for further examination
6. Issues
7. Prior stages of the inquiry-the questionnaire
8. Limited scope
9. Comparative material
Chapter 2 The Questionnaire and Replies Thereto
2.1. The Questionnaire
2. Replies favour in creation of constitutional division of the Supreme Court
3. Some clarifications with reference to points arising out of the questionnaire
4. The question of arrears
5. Object of the inquiry
6. Constitutional Council if feasible in India
7. Example drawn from section 9, Hindu Marriage Act, 1955
Chapter 3 Constitutional Adjudication
I. General Observations: Important Aspects of Constitutional Adjudication
3.1. Aspects of constitutional adjudication
2. Importance of constitutional adjudication
3. Role of Court in development of constitutional jurisprudence
4. Special features of constitutional adjudication
II. Specialisation
5. Special approach
6. Specialisation in the Supreme Court of U.S.A
7. Views expressed by some judges in U.S.A
III. Constitutional Divisions in the Commonwealth and Elsewhere
8. Constitutional divisions in the Commonwealth
9. Suggestions made in Canada
10. Late emergence of public law
11. No logical reason for present state of affairs
12. Position in India
13. McWhinney's view
14. Chief Justice Warren Burger's suggestion
15. The German Constitutional court
IV. The Issues in Constitutional Adjudication
16. Wide scope of questions-views of Cohen, Jackson and Frankfurter
V. The Element of Choice
17. The aspect of choice
18. McCloskey's view
19. Nature of the cases that reach the Supreme Court
20. The task of the judge, and the requisite mental equipment
21. Lord Haldane's observations as to adjudication in the Privy Council
VI. Consistency
22. Consistency adjudication
23. Meaning of "consistency"
24. Role of the court
25. The ultimate "spokesman"
26. Expounding of vague generalities
27. Discretion disciplined by system
28. Shapiro's view on consistency
29. Stability and change
30. Importance of consistency
VII. Evolution of Constitutional Jurisprudence
31. Constitutional jurisprudence
32. Differences from ordinary law
VIII. Time
33. Time
34. Complexity of the issues
35. Analysis requires time
36. Collective judgments
37. Need for leisure-Views of Bickel and Griswold
XI. The Benefits Summed up
38. The experience of an event
39. Factors accounting for greatness in the law
40. Creating a climate
41. Demands of the judicial process in regard to ordinary law
Chapter 4 Amendment of the Constitution
4.1. Constitutional Division-Need for Constitutional amendment
2. Proposal in two Parts: Constitutional aspect of the first Parte
3. View of Chief Justice Burger of the American Supreme Court
4. Constitutional aspect of the second parts of the proposal
5. Ratification by States
6. Basic feature if affected
7. Connected and consequential provisions
Chapter 5 Constitutional Courts on the Continent
5.1. Constitutional Court
2. Austria
3. France the French Constitutional Council
4. The Cour de Cassation in France
5. French Constitutional Council
6. Constitutional Council not feasible in India
7. The Constitutional framework in West Germany
8. The Court in the eyes of the public
9. Competence
10. Jurisdiction in West Germany
11,12. Concept of Public law
13. Judges
14. Panels in West Germany
15. Italy: the jurisdiction of the Constitutional Court
16. Italy: declaration of unconstitutionality
17. Norway
18. Yugoslavia: Jurisdiction of the Constitutional Court
19. Power to tender opinion to Federal Assembly
20. Duty of Federal Assembly of Yugoslavia to bring law into conformity with judicial pronouncement
21. Locus standi in the Constitutional Court in Yugoslavia
22. Points of view expressed in U.S.A
23. Significance of provisions as to Constitutional Courts
Chapter 6 Recommendations
6.1. The first issue: need for creating special division of the Supreme Court
2. No new institution to be created
3. Recommendation for two Divisions in the Supreme Court
4. The second issue: jurisdiction of the proposed divisionrecommendation
5. Criterion to be adopted for determining when constitutional issue involved
6. Criteria laid down in U.S.A
7. Machinery for allocation of business
8. Legality of disposal not to be questioned
9. The third issue: composition of the Constitutional Division
10. The fourth issue: qualification of judges
11. The fifth issue: posting of judges to each Division
12. Chief Justice to be entitled to sit in any division
13. Transitional provisions
14. Amendment of the Constitution and consequential provisions
Appendix Law Commission of India
1. Questionnaire
2. Are you in favour of the establishment of a Court of appeal as the final arbiter of disputes of law (other than constitutional law) leaving the Supreme Court to concentrate on only constitutional issues?
3. Should the Supreme Court only take up that much work which it can dispose of within three months?
4. Do you feel that the Supreme Court is acting as a third chamber?
5. Have the judgments of the Supreme Court regarding compensations payable upon the abolition of feudal rights brought to ought the process of social reform?
6. Are courts grasping at jurisdiction in matters which lie squarely within the competence of the executive branch of Government?
7. Should appointees to judgeships of Supreme Court and High Courts have a political background?
8. Is the criticism that persons of humble origin or low economic status are not likely to be appointed as High Court Judges in India justified?
9. Will it be correct to say that the Judges of the Supreme Court and the High Courts are not commanding that prestige which they used to command in the past only because their salaries are very much lower than the earnings of leading advocates?
10. Is much of the delay in the courts occasioned by lawyers seeking adjournments on flimsy grounds?
11. Should the Supreme Court evolve its own procedure in criminal cases?
12. Is not much of the time of the Supreme Court and High Courts taken up by constitutional writs which ultimately are dismissed?
13. Presently the judicial system is based on the Anglo-Saxan jurisprudence. Should it be replaced by an Indian system of Administration of Justice?
14. Do you feel that the High Courts grasp at jurisdictions in matters where the petitioner has not exhausted an equally efficacious remedy provided by the relevant statute?
15. Can the judicial process be scientized?
16. Do you feel that some leading advocates take up most of the court's working time arguing for interim relief in cases having no merits and thus upset the day's regular fixtures?
17. Has the practice of 'Bench fixation' by lawyers, taken roots in the Supreme Court and the High Courts?
18. Are certain advocates being related to sitting Judges earning by way of 'negative practice' inasmuch as they are engaged only to ensure that the matter gets transferred from the court of a particular Judge?
19. Are over-zealous Government departments responsible for increasing the court's calendar?
20. Should the Supreme Court encourage public interest litigation?
21. Will it facilitate disposal of a greater number of cases if oral arguments are restricted to half an hour each side?
22. Will a procedural requirement making it obligatory on counsel to file written, briefs to cut down the oral arguments?
23. Should some appeals be disposed of without hearing oral arguments?
24. Will it not make for better interpretation of statutes if the rule putting an embargo against citing of debates in Parliament as a legitimate aid to construction is abrogated?
25. Should the present practice of plurality and separate judgments be substituted by one of writing-
26. Will it not make for certainty in Law if the higher courts write shorter judgments?
27. Should an appellate court necessarily write a reasoned judgment-
28. Should not the statute provide for only one appeal?
29. Should matters involving a point of law of general public importance leap-frog directly to the Supreme Court?
30. Should judicial review, revision or appeal against interlocutory order be abolished?
31. To what extent is the criticism that the Supreme Court is reversing the High Courts in matters falling within latter's discretion justified?
32. Should the statute provide for a compulsory attempt to arrive at a compromise at the appellate stage?
33. The above questions mainly cover the problems of fresh institutions
34. Any other matter?

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