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Separation of judiciary


									                         Separation of Judiciary from Executive

                                                       By Justice M. Jagannadha Rao*
                                                   Chairman, Law Commission of India

“……….If anybody suggested the period of three years or some other
period, my first reaction would have been that the period is too long. Why
should we wait so long for this. It might be brought about much sooner that
that.”      (Jawaharlal Nehru – Debate in the Constituent Assembly: 25th
November, 1948)

         Article 50 of the Constitution of India, contained in Part IV, directs
that the „State shall take steps to separate the judiciary from the executive in
the public services of the State‟.

         The said principle of separation of the judiciary from the executive
which was introduced in the Constitution of India is yet to be implemented
in some States and that is the subject of discussion in this Conference
organized by the Bar Council of Assam.                        I propose to deal with the
questions, firstly the historical point of view, the prohibition in Art. 37
against the Courts, the roots of the principle of independence of the
judiciary, the rule of law, basic structure doctrine and Articles 234 and 235.

* The views expressed are the personal views of the author.

Parliamentary Debates in respect of Art 50 (Draft Article 39A):

      I shall start with the debates in the Constituent Assembly which have
a bearing on the purpose and intendment of Art. 50. The debates in the
Constituent Assembly on separation of judiciary and executive took place on
24th and 25th November, 1948 (See Debates of Constituent Assembly Vol
VII-A (pp 582 to 593). Initially, the Draft Article 39A as introduced on 24 th
Nov. 1948 by Dr. B.R. Ambedkar required separation of judiciary from
executive to be completed in three years. It read as follows:

      “Art 39A:     That State shall take steps to save that, within a period of
      three years from the commencement of the Constitution, there is
      separation of the judiciary from the executive in the public services of
      the State”.

Dr. Ambedkar referred to the history relating to the demand for separation.
He said that because of the likelihood of certain difficulties, the article was
being “deliberately” introduced in the Chapter on Directive Principles for
otherwise separation could be required to be done „instantaneously‟. He said
(p 582):

      “We think that the time has come when this reform should be carried
      out. It is, of course, realized that there may be certain difficulties in
      the carrying out of this reform; consequently this amendment has
      taken into consideration two particular matters which may be found to
      be matters of difficulty. One is this: that we deliberately did not make
      it a matter of fundamental principle, because if had made it a matter of

      fundamental     principle,   it   would      have   become    obligatory
      instantaneously on the passing of the Constitution to bring about the
      separation of the judiciary and the executive. We have, therefore,
      deliberately put this matter in the Chapter on directive principles and
      there too we have provided that this reform shall be carried out within
      three years, so that there is no room left for what might be called
      procrastination in a matter of this kind.”

      Thus, to avoid „instantaneous‟ implementation, Art. 39A (now Art.
50) was included in the chapter on Directive Principles rather than elsewhere
and a sufficiently large period of three years was prescribed for

      There was a detailed debate.

      But on the next day, i.e. 25th, Nov. 1948, Dr. Ambedkar moved
another amendment dropping the 3 years limit. After that, Art 39A read as

      “Art 39-A: The State shall take steps to separate the judiciary from
      the executive from the executive in the public services of the State.”

      The intention was that separation need not wait even for three years.
But in the debate, there was criticism, particularly by Dr. H.N. Kunzru that
Government was not keen for separation and was interested in the executive
retaining judicial powers so that Government could make the appointment of
officers of its choice. Motives were attributed. Then the Prime Minister, Sri

Jawaharlal Nehru, intervened to remove such suspicions and make it clear
that the three year limit was removed because, it was intended that the
separation must be completed even well before three years. His speech is
quite significant (p 589):

      “Hon‟ble Pandit Nehru: I may say straight off that so far as the
      Government is concerned, it is entirely in favour of the separation of
      judiciary and executive functions (cheers). I may further say that the
      sooner it is brought about the better (Hear, hear) and I am told that
      some of our Provincial Governments are actually taking steps to that
      end not. If any one asked me, if anyone suggested the period of three
      years or some other period, my first reaction would have been that the
      period is too long. Why should we wait so long for this. It might be
      brought about, if not all over India, in a large part of India, much
      sooner than that.”

Any time limit could make States take it easy till towards the end of the
period. He said (p 389):

      “And I do not see myself how any Provincial or other Government
      can forget this Directive or delay it much.”

      The question of implementation of Art 50 has, therefore, to be debated
on the basis of this background.

Law Commission Reports No. 14, 37 and 41:

      Several reports of the Law Commission, in particular, the 14, 37 and
41st Reports have dealt with the subject of separation of judiciary from the
executive and the need to implement the same expeditiously.

14th Report: The 14th Report of the Law Commission is acknowledged to be
the best Report of the Law Commission of India. The Chairman was none
other than one of our greatest jurists, Sri M.C. Setalvad. In Chapter 41 of
the Report, the subject of „Separation of Judicial and Executive functions‟
was dealt with exhaustively (Vol. 2, pages 850 to 860) and six
recommendations were made.

      The Commission, after referring to the position in some States which
had implemented separation observed that the other States must soon
complete the separation. Referring to the purpose of reform, it said: (p 850)

      “The real purpose of this reform is to ensure the independent
      functions of the judiciary freed of all suspicion of executive influence
      or control, direct or indirect. It incidentally ensures that officers will
      devote their time entirely to judicial duties and this fact leads to
      efficiency in the administration of justice.”

After referring to the history of separation from 1793, the Commission
referred to the appointment of Islington Commission in UK. It referred to
Art 50, and stated that the draft initially fixed 3 years period for separation
but later the time limit was omitted.      It referred to Sri Pandit Nehru‟s
assurance in the Constituent Assembly as follows: (p 851)

         “The time-limit, it appears, was eventually not fixed on the assurance
         of the Prime Minister Sri Jawaharlal Nehru, that the Government was
         entirely in favour of the separation and that in a large part of India, the
         change might be brought about much sooner than that.”

The assurance of Prime Minister Nehru, as stated earlier, was that separation
will be implemented in less than 3 years.

         The Commission then referred to the Scheme for separation in Madras
notified by an executive order, the scheme in Bombay under the Separation
of Judicial and Executive Functions Act (Act XXIII of 1951), and the UP
scheme – the lat one was described as not a real separation, and the scheme
of separation in Punjab, etc. It said (p 356)

         “It may, therefore, be safely asserted that even apart from the need for
         giving effect to the universally acknowledged principle that the
         judiciary should be independent of the control of executive, separation
         is most urgently and immediately called for to ensure the efficiency of
         the Magistrates and the removal of extreme delays….”

Three things are thus given importance by the Commission:

   (a)      independent judiciary outside control of executive;
   (b)      independent judiciary in the control of the judiciary itself;
   (c)      judicial officers, unlike the executive officials, would exclusively
            have only judicial work and no other work;
   (d)      efficiency of the judiciary.

The Commission rejected the plea of financial stringency (p 856-857) by
referring to the article of Mr. Justice C.D. Field, Judge, Calcutta High Court
in the Asiatic Quarterly Review and recommended that there should be
legislation by Parliament on the lines of the Bombay Act and that pending
legislation, separation be introduced forthwith under executive orders as in

37th Report of Law Commission (1967):

      In the 37th Report (paras 32 to 62) of the Law Commission on the
Code of Criminal Procedure, 1898, the question of separation of judiciary
from executive was again considered (see pp 12 – 23). After referring to Art
39A (now Art 50) and stating that the first draft Article had a three year limit
and later the time limit was removed, the Commission observed that it was
necessary that the members of the judiciary on the criminal side should be
“independent of executive control”. It referred to the schemes in various
States and to the 14th Report also. It referred to the Punjab Separation etc.
Act, 1964 (Act 25/64), the Delhi & H.P. Separation Bill, 1966 (which
lapsed), and the West Bengal Separation etc. Bill (1967). It concluded that
separation must be completed expeditiously by legislation.

41st Report (Vol 1) (1969):

      In the 41st Report of the Commission on the Criminal Procedure Code,
1898, in Chapter 2, dealing with Constitution of Criminal Courts and
officers, the Commission referred to the 14th Report and the 37th Report and

stated that separation should be completed fast and must be uniform in all
States. It referred to the position in several States and Union Territories and
stated that Parliamentary legislation be introduced and before that is done,
the States should pass executive orders as done in Madras.

      It is significant that in para 2.18, the Commission referred to Art 235
and the control of the High Courts over the subordinate courts as follows. In
para 2.23 it stated:

      “2.23: The separation of the executive from the judiciary will be
      effective only when the judicial magistrates are brought under the
      control of the High Court and this can be achieved by action under Art
      237 of the Constitution. The provisions of Art 233, 234 and 235
      should be made applicable by a public notification of the Government
      to all judicial magistrates in the State. We note that this has already
      been done in some States.
      2.24: ……The State Government, however, is required to exercise
      this power in consultation with the High Court…..”.

Recent directions by the Courts in Bangladesh

      We shall refer to the recent developments in Bangladesh and Pakistan.
Art 22 of the Bangladesh Constitution (in Part II, fundamental principles of
State Policy) states: “Art 22: The State shall ensure the separation of the
judiciary from the executive organs of the States”.

      It is also important to note that Art 8(2) which is also in Part II states
that the directive principles in Part II “shall not be judicially enforceable.”

      The Supreme Court of Bangladesh, in an order dated 26 th February,
2005, has set a fresh deadline of March 15, 2005 for the government to
finalise the rules as per the 12-point directions of the highest appellate
Division to separate the judiciary from the executive.

      A Full Bench of the appellate Division comprising Chief Justice Syed
J.R. Mudassir Hussain and five other Judges also ordered the Government to
submit to the Court before March 15, 2005 the copies of the finalized rules,
which have been sent to President Dr. Iajuddin Ahmed for approval. The
Court also expressed annoyance over the government‟s dilly-dallying tactics
in implementing the directives of the Court for separation of the Judiciary
from the Executive. It reprimanded the Government for not submitting
proper documents on the draft rules framed as per the directives of the
Appellate Division. It observed:

      “About six months elapsed after the government had sought time for
      complying with the directives given by the Court. The purpose of the
      government seeking time has been fulfilled. We do not want to be
      part of the falsehood and we will not tolerate it since a lie brings other

The Court asked the Attorney General, Mr. A.J. Mohammad Ali as to how
much time the government would need to separate the judiciary from the
executive. The Court observed, after examining the papers submitted by the

government, that instead of proposing separation of the judiciary, the
Government was trying to divide the judiciary. It said:

      “Take time for the entire year of 2005 or eternity – is it separation or
      hide and seek? Separation and division of the judiciary are not the
      same. Examining the papers submitted by the Government; the Court
      thinks the government wants to divide the judiciary, not separate it.”

The Bangladesh Attorney General submitted before the Court that the
Government was committed to separating the judiciary from the executive
and necessary steps would be taken as soon as possible to issue rules. He
said the government would submit required papers on the proceedings in
implementing the Court‟s directives before the Court in the next hearing.
But the Court said:

      “Will the government implement the Supreme Court‟s directives as
      per the wisdom of the President, or (as per) Khalilur Rehman (a senior
      assistant secretary)? Don‟t separate the judiciary from the executive
      as per the theory made by Khalilur Rehman.”

The Appellate Court had issued contempt notice to Mr. Khalilur Rehman for
allegedly distorting the judgment in Masdeer Hussain vs. Bangladesh
popularly known as the „Judiciary separation case‟.
(The above facts are gleaned from „Arab News‟ dated 27.2.2005)
( Artid = 59596 & d = 27
& m = 2&y = 2005 & ht).

       Earlier, as per the Supreme Court‟s directives, the Government had on
Nov. 10, 2004 issued a gazette Notification forming a new independent
judiciary services which will be known as Bangladesh Judicial Service. It
transferred about 800 judicial officers, including district Judges, additional
district judges, joint district judges, district and sessions judges and assistant
judges to the new judicial Service as per the directives of the Court.

       It remained for the government to transfer about 800 magistrates
working in the Judiciary to the Judicial Cadre as per the Court‟s directives.
But, as this was getting delayed, the above orders came to be passed. The
Hon‟ble Minister for Law, Justice (Parliamentary Affairs, Bangladesh Mr.
Moudath Ahmed (a Barrister by profession)) stated that government was
keen and that, in fact, it had appointed a Judicial Service Commission
headed by Justice M.M. Rahul Amin in accordance with the 12-point
directive of the Supreme Court for separation of the Judiciary from the
Executive, but that the Commission could not function till the Judicial
Service came to be constituted.        The Bill constituting the Bangladesh
Judicial Service was approved by the President on 9th November. About 208
posts of Judges in the lower judiciary are vacant.
(See         Independent,          quoted          in        http://independent- mt. htn).

       It is also to be noted that Chief Justice Syed J.R. Mudassir Hussain
stated on 24th June 2004 that the Judiciary was the ultimate protection of the
rule of law since each individual has the right to enjoy economic, social,
cultural, civil and political rights in the country.      He also said that an

independent, effective and vigilant judiciary would always ensure the
omnipresence of the rule of law in the country. He said:
      “None can deny the fact that an impartial, efficient, competent and
      effective judiciary is a must for satisfactory functioning of democracy
      in the country …… Independence of judiciary cannot be guaranteed
      without separation of judiciary.”

The Chief Justice was speaking in a seminar on „Rule of Law and Social
Justice‟ organized by „Legal Aid‟, a monthly legal affairs journal. (News
Today,      26th      June      2004)       (see      http://www.bangladesh- Date = 2004-06-26 & hid Type = TOP & hid).


      It appears that several steps had been taken in Pakistan for separation
of judiciary from executive. A news item of 12th May 2001 (Dawn see 21.htm) states that earlier, the
appointing authority of Judicial magistrates and additional sessions Judges
under the Civil Servants Act, 1973 was the provincial government but that
the NWFP Government had decided to declare the Peshawar High Court as
the appointing authority of judicial officers. The High Court was preparing
the draft rules under sec 26 of the Civil Servants Act, 1973.

      This procedure appears to be more progressive for in India, the High
Court makes a recommendation and the Government of the State, on whom
it has been held that recommendation is binding, issues the Notification.

      Earlier, after separation of judiciary from executive, financial and
administrative autonomy was guaranteed to the High Courts. However, with
provincial government being the appointing authority of judicial officers, it
was considered a major hurdle in the way of separation of judiciary from
executive. This has now been changed as stated above.

Separation of powers: General principles:

      Aristotle, in the 4th Century B.C., categorized three political functions
– the deliberative, the magisterial and the judicial. John Locke, in his
Second Treatise of Civil Government (1690) propounded the division of the
legislative and executive branches. Although Judicial independence had
been established in England with the Act of Settlement 1701, it was only
after Montesquiem‟s, „The Spirit of the Laws‟ (1748) that the third
independent function of government – the Judiciary, emerged as an
independent governmental structure.           But it remained abstract till the
American Revolution presided over by the Massachusetts Political leaders,
John Adams and others. It was there agreed that the legislature, executive
and judicial powers shall be placed in separate departments to the end that it
might be a government of law and not men. A system of checks and
balances was introduced into the US Constitution in 1787. Art 16 of the
French Declaration of the Rights of Man (1784) also stated, “Any society in
which the safeguarding of rights is not assured, and the separation of power
is not observed, has no constitution”.

Madison wrote in the Federalist No. 51:

      “ambition must be made to counteract ambition”.

He also stated:
      “In framing a government which is to be administered by men over
      men, the great difficulty lies in this: You must first enable the
      government to control the government; and in the next place, oblige it
      to control itself.”

Therefore, the actions of the competing branches should be counter balanced
and equilibrium must be maintained. Justice Brandeis of the US Supreme
Court described the principle of separation of powers as follows:

      “The purpose was, not to avoid friction, but, by means of the
      inevitable friction incident to the distribution of the governmental
      powers among three departments, to save the people from autocracy.”

In Buckley vs. Valco (1976) 424 US page 1, the US Supreme Court added a
word of caution. It said:

      “a hermetic sealing off of the three branches of government from one
      another would preclude establishment of a nation capable of
      governing itself effectively.”

Judicial power should not be shared by the Executive:

      Developing on these basics, it becomes clear that the judicial power
cannot be shared with the executive. In Liyanage vs. Regina: 1967(1) AC

259, adverting to the need for separation of the three powers Lord Pearce
said that it would be

      “inappropriate in a constitution by which it was intended that judicial
      power should be shared by the executive power or the legislature”.

This principle is also reflected in the statement of Montesquieu in his „Spirit
of the Laws‟. He said:

      “When the legislative and executive powers are united in the same
      person, or in the same body of magistrates, there can be no liberty…..
      Again, there is no liberty if the judicial power be not separated from
      the legislative and executive. Were it joined with the legislative, the
      life and liberty of the subject would be exposed to arbitrary control;
      for the Judge would then be the legislator. Were it joined by the
      executive however, the Judge might behave with violence and

Principles of Independent and impartial judiciary have basis in human rights:

      Independence and impartiality of the judiciary which are reflected in
Art 10 of the Universal Declaration of Human Rights.            It stated that:
“Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and if any criminal charge against him.”

      Art 14(1) of the International Covenant on Civil and Political Rights,
1966 states:

      “Art 14. All persons shall be equal before the Courts and tribunals.
      In the determination of any criminal charge against him, or if his
      rights and obligations in a suit at law, everyone shall be entitled to a
      fair and public hearing by a competent, independent and impartial
      tribunal established by law.‟

Michael Kirby, Judge, High Court of Australia, has explained as follows:

      “It is not necessary to be a sophisticated investor in Hong Kong or a
      world-weary lawyer in Australia or United States, to realize how
      important it is that a conflict, serious enough to come to formal
      decision-making in a Court, should be resolved by a decision-maker
      who is „competent, independent and impartial‟. Even a person living
      in a most primitive society will aspire to that objective when
      confronted with the need to approach a decision-maker. A Judge
      without independence is a character wrapped in a farce inside an
      oppression”.   („Independence of Judiciary, Basic Principles, New
      Challenges‟, Human Rights Institute Hong-Kong, 1998).”

Courts must be and seen to be really separated:

      One of the cardinal principles of the Judicial system is that justice
must not only be done but must be seen to be done‟. If judicial functions

meant for Court of law, are entrusted to executive officials, that cannot
satisfy this important principle of justice.

          Prof. Manfred Nowak (UN Covenant on Civil and Political Rights –
ICCPR Commentary, Engel, 1993, (p 233 at 244-246) (quoted by Michael
Kirby) states, explaining Art 14(1) of the ICCPR:

          “On the one hand, it is not enough for the national legislature to
          designate an authority as a Court if this does not correspond to Art
          14(1)‟s requirements of independence and impartiality. On the other
          hand, administrative authorities that are largely independent free of
          directives may, under certain circumstances, satisfy the requirement of
          a tribunal pursuant to Art 14.”

Recent developments in UK proposing major constitutional reforms for
abolition of the office of Lord Chancellor, who had a triple role in the
legislature, cabinet and the judiciary are in point. The reason behind the
reform is that the Lord Chancellor who is the senior judicial officer, is
entitled to sit as a „Law Lord‟ (i.e. as a Judge in the House of Lords in its
appellate capacity. In addition, he is a member of the Cabinet (i.e. the
Executive) and also Speaker of the House of Lords in its legislative capacity.
The combination of all these roles is now treated as a flagrant breach of the
principle of separation of powers. Further as Prof. Jeffrey Jowell Q.C.

          “In the end, however, it has been agreed that it is more important to
          further the appearance of Justice and that multiple roles of the Lord

      Chancellor     should    now       be   abandoned.”    (see   „Road   to
      Constitutionalism in UK, Renewal and Reform‟ an Essay in honour of
      Soli J. Sorabjee p. 136 at 139).

Earlier history of separation of powers in colonial India:

      One cannot understand the importance of Art 50 unless we go back to
the struggle of 150 years of the people of India to achieve this goal.

      The officers of the East India Company, who were traders, when they
received the grant of the Diwani in 1765, became a “trader-sovereign”.
Thereafter, though their primary function was revenue collection, they came
to be entrusted with administration of justice, aided by local personnel.
Basu (Vol. E, Silver Jubilee Edition p 177) says that it was curious that the
original judicial function of the Collectors of the Company was to preside
over the Civil Courts, while criminal Justice was allowed to be administered
by Muslim officers under Muslim Law, as before. In 1781, the Collectors
were entrusted with magisterial powers and supervision of criminal justice
was also taken over by the officers of the Company.            However, Lord
Cornwallis was the first to introduce the doctrine of separation of powers in
1793 by Judicial Regulation which declared:

      “The revenue officers must be deprived of their judicial powers.”

But this was slowly eroded from 1807 and by Regulation of 1821, the status
quo ante was unfortunately brought back into being.            (See history of
separation of power in India from Ch. 1 of Report of the Committee on the

separation of he judiciary from executive, 1947, presented by Justice L.S.
Lokur. There were 10 other members in this Committee appointed by the
Bombay Government including Mr. R.A .Jahgirdar, C.K. Daftary, B.N.
Datar, Y.B. Chavan and others).

      In 1837, another Committee was appointed with Mr. Bird as
Chairman. Once again, separation was restored in spite of the dissent of Mr.
Halliday, Lt. Governor of Bengal. By 1845, the separation was completed
except in three districts of Orissa (Earlier in 1837, Mr. Halliday had, in fact,
supported separation as a member of the Police Commission).                This
separation too did not last long as it was opposed by Lord Dalhousie in his
minutes dated 24th April, 1854. He was both the Governor of Bengal and the
Governor-General of India. The separation of Collectors and Magistrates
was thus given up. Though Mr. Grant opposed re-union, the Secretary of
State for India by letter dated 14th April, 1859 gave sanction to the merger.

      In 1860, the Police Commission was appointed. After the mutiny of
1857, the Government was not willing for separation and therefore, the
Commission in its Report in Sept. 1860 though, in principle, it conceded the
need for separation, it did not advise separation to be implemented. The
proposals of the Commission were accepted by Government and a Bill was
introduced by Sir Bartle Frere on 29th Sept., 1860. The Bill became Act V of
1861. The Police Commission recognized that there was to be no departure
from the principle of separation of powers. However, there was no proposal
for implementation. At the second reading of the Bill, replying to members
who advocated complete separation, Sir Frere said: “It is one thing to lay
down a principle and another to act on it at once.” He very frankly admitted

that his Bill embodied a „compromise‟ which was a „half and half measure‟.
This settled, according to Mr. J.W. Quinton‟s note “the question of the
continuance of the union of judicial and executive police functions in the
same office, which had been discussed with such energy for nearly forty
years. The application of the principle of separation, theoretically perfect,
was qualified by an exception demanded by conditions under which the
British Government of India was carried on”.

      The Indian Penal Code was passed in 1860.          The first Code of
Criminal procedure in the following year and was amended in 1802, 1869
and overhauled in 1872 as Act X of that year and each time, the question of
separation was discussed.

      In 1886 the Indian National Congress adopted a resolution for
separation and again every year from 1887 to 1896. In 1893, Sir Pherozshah
Mehta even moved a resolution in the Bombay Council.              A historic
memorial was consequently signed by eminent people, including some
Britishers. But Government of India rejected the „memorial‟ in 1908.

      In the same year, in 1908, there was a welcome change towards
separation in the Budget speech of Sir Harvey Adamson in the Imperial
Council. He was then Home Member but his statement was made without
consultation with local governments.        The policy was sent to the
Government of Bengal but on account of local disorders, it was once again

      Again, Sir S.N. Banerjee moved a resolution in the Viceroy‟s Council
in March 1913 and on being pressed, Sir R. Chaddock, on behalf of
Government, accepted separation in principle. But the World War I broke
out and the matter was shelved.

      In 1919, the Government brought in a new provincial councils and in
Bombay, Madras, Bengal, UP, Bihar and Orissa Central provinces, Assam
and Punjab private members moved resolutions. In Bombay, it was passed
but opposed by Government. In Madras, it was lost but passed in 1922 and
Justice Coleridge Committee was appointed which submitted a report on 21 st
April 1923. In Bengal a resolution was passed and Government appointed
Justice W.E. Grieves Committee which gave its report on 30th January, 1922.
In UP, a resolution was passed. In Bihar and Orissa, a resolution was passed
and a Committee was appointed on 26th November, 1921.            In Central
Provinces the resolution moved by Mr. M. R. Jayakar was passed.          In
Assam, the resolution moved by Moulvi Munawar Ali on 19th October, 1928
was passed.     In Punjab, it was passed and Justice W.A. Rossignol
Committee was appointed. This was the position in the provinces.

      At the Central level, on 9th March 1922, in the Council of States,
Government assured that they would not object to any Provincial
Government giving effect to separation of judiciary. In the Legislative
Assembly, a resolution was passed in favour of separation on 20th Sept.
1922, without any opposition.

      But the Government of India did not respond to these resolutions. In
1931, the subject was raised in the Central Assembly.           The Simon

Commission reforms were relied on as an excuse for not going ahead
withseparation. In 1935, the Government even said that separation was an
„exploded‟ theory.

      In 1937 Congress cabinets were installed in a majority of provinces.
Curiously, the Governments did not show enthusiasm and (as stated at p 66
of „Recollections and Reflections of Sir C. Setalvad), Mr. C.
Rajagopalachari, Chief Minister of Madras merely said the executive
officers will be supervised so that they will not go wrong. The Report of the
Committee of Separation of Judiciary from Executive (Madras) 1946 (para
47) even went to the extent of stating that separation of judiciary and
bringing it under the control of the High Court would create an „imperium in
impere‟. This was criticized by Sir John Beaumont, later Chief Justice of
Bombay, (see Vol 48 Bom L Journal p 12 at p 17):

      “…..whatever the reasons may have been, Congress Government
      made no real attempt to separate the judiciary from the executive… I
      regarded the failure to tackle the problem of the magistracy as a
      cynical sacrifice of principle to expediency.”

Congress ministries which voluntarily went out of office in 1939 returned
back to power in 1946.      Things became better. The Bihar Government
appointed Justice Meredith Committee which submitted a report and Madras
Government appointed Mr. K. Raja Ayyar (Advocate General) Committee
which gave its report on 7th November, 1946. (The Bombay Government
appointed Justice N.S. Lokur Committee on 1st February, 1947, requesting it
also to consider the Madras Report). Justice Lokur report is very exhaustive

and was given on 11th October, 1947. (The material in this paper is drawn
therefrom, so far as the history is concerned). These committees
recommended separation.

      It was only in 1948 during the debates in the Constituent Assembly
that Art 39A was drafted and put in the Chapter of Directive Principles as
Art 50.

Duty to separate judiciary finally enters the Constitution in Art 50 after more
than 150 years of struggle:

      I have referred to the history of separation only to impress that the
battle for separation of powers which started in 1793 was won in 1950 when
Art 50 was introduced in the Constitution.         There have been several
judgments of the Supreme Court where the mandate of Art 50 has been
referred to (see Chandra Mohan vs. State of UP AIR 1966 SC 1987); Union
of India vs. Sankalchand (AIR 1977 SC 2328).

Separation of Judiciary from Executive and independence of judiciary (basic
structure doctrine):

      We have already referred to the concepts of fair trial, the need for
entrusting judicial functions to persons who are independent, impartial and
competent to administer justice and adjudicate civil and criminal justice.
This stem from the Universal Declaration of Human Rights (1948) and the
International Covenant of Civil and Political Rights (1966) to which India is
a party.

      The Supreme Court has held that the independence of the judiciary is
a basic feature of the Constitution. Bhagwati J stated in S.P.Gupta vs. Union
of India as follows: “if there is one principle which runs through the entire
fabric of the Constitution, it is the judiciary which is entrusted with the task
of keeping every organs of the State within the limits of the law and thereby
making the rule of law meaningful and effective. This concept is not limited
to independence from executive pressure or influence only, but includes
independence from any other pressures and from prejudices acquired or
nourished by the class to which the Judges belong.” “Judges must be of
stern stuff and tough fibre, unbending before power, economic or political
and they must uphold the core principle of rule of law…”

      Likewise, „rule of law‟ has been declared to be a basic feature of the
Constitution. (C. Ravichandra Iyer vs. Justice A.M. Bhattacharya) (1995)(5)
SCC. 457. It has been held that independence means “fearlessness of other
power centres, economic or political and freedom from prejudices acquired
or nourished, by the class to which the Judge belongs.” (High Court of
Judicature at Bombay vs. Shirish Kumar Rangrao Patil): 1997(6) SCC 339.

      A distinction between the judicial personnel and executive was made
in All India Judges Assn. vs. Union of India: 1993(4) SCC 288:

      “The Judges, at whatever level they may be, represent the State and its
      authority unlike the administrative executive or the members of other
      services. The members of the other services, therefore, cannot be

      placed on a par with members of the judiciary, either constitutionally
      or functionally……
            In view of the separation of powers under the Constitution, and
      the need to maintain the independence of the judiciary to protect and
      promote democracy and the rule of law, it would have been ideal if
      the most dominant power of the executive and the legislative over the
      judiciary viz., that of determining its service conditions had been
      subjected to some desirable checks and balances. This is so even if
      ultimately, the service conditions of the judiciary have to be
      incorporated in and declared by legislative enactments.”
The Court significantly remarked:
      “But the mere fact that Art 309 gives power to the executive and the
      legislative to prescribe the service conditions of the judiciary, or that
      after the Council of States makes the necessary declaration under Art
      312, it is the Parliament which is empowered to create an All India
      Judicial Service, does not mean that the judiciary should have no say
      in the matter. It would be against the spirit of the Constitution to deny
      any role to the judiciary in that behalf, for theoretically it would not be
      impossible for the executive or the legislature to turn and twist the tail
      of the judiciary by using the said power. Such a consequence would
      be against one of the seminal mandates of the Constitution, namely,
      to maintain the independence of the judiciary…..
            …The service conditions of the judicial officers should be laid
      down and reviewed from time to time by an independent Commission
      exclusively constituted for the purpose and the composition of such
      Commission should reflect adequate representation on behalf of the

Adverting to the 14th Report of the Law Commission (1958) the Court said:

      “By giving the directives in question, the Supreme Court has only
      called upon the executive to implement their imperative duties to the
      Courts to issue directives to the authorities to perform their obligatory
      duties whenever there is a failure on their part to discharge them. The
      power to issue such mandates in proper cases belongs to the Courts.”

Art 37: Directive principles cannot be enforced by the Courts:           What
happens if a Directive Principle overlaps fundamental rights or other
constitutional rights?:

      Article 37 of the Constitution of India expressly provides that the
provisions of Part IV (includes Art 50) are not enforceable. It reads as

      “The provisions contained in this Part shall not be enforceable by any
      Court, but the principles therein laid down are nevertheless
      fundamental in the governance of the country and it shall be the duty
      of the State to apply these principles in making laws.”

      Before we refer to the Supreme Court judgments on Art 37, it is useful
to refer to the fact that Sri B.N. Rao suggested an amendment to the effect
that in the event of a conflict between Fundamental Rights and Directive
Principles, the latter must prevail. But, no such clause was introduced into
the then Art 39A because it was expected that the judiciary would certainly
help in achieving the goals in Part IV. In fact in the context of Art 50, we

are not encountering a conflict between Fundamental Rights and Directive
Principles but a situation where the courts could monitor the steps taken or
which should be taken to achieve the goal in Art 50.
This Article has come up for consideration before the Supreme Court in
several cases.

      The provisions of Part III and Part IV of the Constitution, it has been
held, supplement each other. Together, they constitute the „conscience‟ of
the Constitution (Keshvananda Bharath vs. State of Kerala 1973(4)SCC 225.
As to whether fundamental rights of an individual can be limited by the
rights of a class or group of people who are entitled to the rights in Part IV,
conflicting views were expressed by different Judges in that case. But
Mathew J took a neutral stand. He did not see any bar. He said:

      “Whether at a particular in the history of the nation, a particular
      Fundamental Right       should have priority over the moral claim
      embodied in Part IV or must yield to them is a matter which must be
      left to be decided by each generation in the light of experience and its
      values.” (para 1701-4, 1714).

Beg J too observed:

      “Primarily, the mandate in Art 37 was addressed to Parliament and the
      State Legislatures, but, in so far as Courts of Justice can indulge in
      some judicial law-making, within the interstices of the Constitution or
      any statute before them for construction, the Courts too are barred by
      this mandate (para 1800-02, 1806)”.

      That means that the Court can act in the „interstices‟, short of giving a
      direction for separation. This aspect is elaborated further towards the
      conclusion of this article.

In Madan Mohan Pathak vs. Union of India: 1978(2) SCC 50, in the context
of reasonable living wages for workmen and the goals in Arts 38, 39 and 43,
Beg J referred to Art 37 and stated:

      “The best way in which the Directive Principles without being directly
      enforced are given vitality and effect by Courts is to use them as
      criteria of reasonableness and therefore, of the validity of legislation
      and executive action”.

Ahmadi J (as he then was) and K.J. Reddy in Jacob M. Puthaparambil vs.
Kerala Water Authority: 1991(1) SCC 28 stated that the principles in Part IV
refers to the objectives and goals which the State must endeavour to achieve
„over a period of time‟. Whenever the State is required to make laws, it
must do so consistently with these principles.

      Krishna Ayer J and two other learned Judges stated in Sen Prakash
Rekhi vs. Union of India: 1981(1) SCC 449 that both Part III and Part IV
must happily flourish together. “Whenever the Constitution has felt the need
to subordinate Part III to Part IV, it has specificated it, and, absent such
express provision, both the Parts must and can flourish. He said:

         “The substance of Part III, where the Constitution says so, shall not be
         sacrificed at the alter of Part IV by stratagem of incorporation”.

         In “DTC vs. DTC Mazdoor Congress (1991) Suppl(1) SCC 600, it
was stated that different articles in Part III and Part IV must be read as an
integral and incorporeal whole with possible overlapping with the subject
matter of what is to be protected by its various provisions, particularly, the
Fundamental Rights.

         This „overlapping‟ of Part IV rights with fundamental rights or other
constitutional rights gives scope to the Court to work in the interstices,- as
stated by Beg J.

Where Supreme Court gave directions in respect of matters also falling
under Part IV:

         It is necessary to refer to some cases where the Supreme Court has
indeed been giving various directions to the State in relation to matters
which are part and parcel of Part IV. These cases have an important bearing
on the question whether the Courts can issue directions for the purpose of
achieving the goals in Art 50 by resorting to the principle of judicial
independence which is part of basic structure of Constitution and to Art 234
and 235 which put the subordinate courts in the control of the High Courts.

   (i)      Take the case of equal pay for equal work, as stated in Art 39(d).
            The Supreme Court held that is a facet of Art 14 and has either
            struck down statutes/rules which denied the same. In some cases, it

        gave positive directions too. Randhir Singh vs. Union of India
        AIR 1982 SC 879.
(ii)    Take the case of equal justice and free legal aid in Art 39A. It has
        been held that this article read with Art 21 is a facet of the
        fundamental principle of „access to justice‟ and the Supreme Court
        has given several directions in various cases in connection with
        legal aid. Hussainara Khatoon vs. State of Bihar:AIR 1979 SC
(iii)   Take the case of health and strength of workers, men and women,
        children, in Art 39(e). M.C. Mehta vs. State of TN: 1991(1) SCC
(iv)    living wage (Art 43). Nakara D.S. vs. Union of India: AIR 1983
        SC 130.
(v)     free and compulsory education in Art 45. Mohini Jain: AIR 1992
        SC 1858).
(vi)    promotion of educational and economic interests of Scheduled
        Castes, Scheduled Tribes and Weaker Sections. (Art 6) Panchayat
        etc. vs. Haribodh 1996(10) SCC 320.
(vii) public health (Art 47),.           Ratlam Municipal Council vs.
        Vardhichand: AIR 1980 SC 1622.
(viii) protection of environment and forests (Art 48A). Rural Litigation
        and Education Kendra : 1985(2) SCC 431; M.C. Mehta vs. Union
        of India 1988(1) SCC 471
(ix)    protection of monuments (Art 49). M.C. Mehta vs. Union of India:
        1998(9) SCC 589.
in all these areas either by resort to Art 14 or Art 19 or to the word „life‟
in Art 21, the Supreme Court has been giving various directives. That is

   done in spite of these matters falling in Part IV and the bar of Court
   directives contained in Art 37.

      In fact if as per Art 48A the State is to endeavour to protect and
improve the environment, that does not mean that the Court cannot issue
directives by resort to the enlarged meaning of „life‟ in Art 21 merely
because of the prohibition in Art 37. Where the duties overlap and fall both
under Part IV as also under Part III or other provisions of the Constitution or
constitutional principles, the Supreme Court has been issuing directions

      It is in this context and in the light of the rulings under the above
Articles, it is clear that the Courts, short of enforcing the directive principles
could issue directions as to the means for achieving the goals, whenever
there is an overlapping between Part IV on the one hand and Part III or other
provisions of the Constitution or other principles of constitutional law, on
the other.

Can the Courts issue directives to further the goals of Art 50 on the basis of
Art 14, 21, basic structure doctrine in spite of Art 37?

      I have generally answered the question in the last paragraph while
dealing with overlap between Part IV and other provisions or principles.

      The broad question before us is whether in the light of the need to see
that the basic structure doctrine applicable to independence of Courts, there
is any prohibition in issuing directions to the Executive to take various steps

which may ultimately lead to achieving he goal in Art 50, though the Court
may not direct Art 50 to be implemented before a date fixed by the Court.

      In Gauhati High Court vs. Kuladhar Phukan: 2002(4) SCC 524
significant observations were made by the Supreme Court. The doctrine of
separation of powers was referred to and the need for the State to consult the
High Court under Art 234 and 235 was impressed. It was stated (para 14) as

      “The doctrine of separation of powers and the need for having an
      independent judiciary as a bulwark of constitutional democracy
      persuaded the founding fathers of the Constitution assigning a place of
      distinction to the judiciary. Chapter VI of the Constitution dealing
      with subordinate Courts seeks to achieve the avowed object of
      insulating even the subordinate judiciary from the influence of the
      executive and the legislature”.

      In the above case, Art 234 which refers to Consultation with High
Court and Art 235 which vests the control of the subordinate judiciary in the
High Court, were referred to. „Control‟ in Art 235, it was stated, meant both
control and supervision and the judicial side as well as the administrative
side. Consultation with High Court was mandatory and opinion of the High
Court would be binding on the State Government. Earlier judgments in
State of Orissa vs. Sudhansu Sekhar Misra 1986 (3) SCC 604; State of Bihar
vs. Bal Mukund Shah 2000(4) SCC 640 and other cases were referred to.

      The principle of directives by Courts in the „interstices‟ and the
constitutional prohibition in Art 37, adumbrated by Beg J in Keshavanda,
needs to be further elaborated.     Justice Holmes said, in a well-known
passage as follows (Southern Pacific Co. vs. Jensen: 244 US 205 (211):

      “I recognize without hesitation that Judges must and do legislate, but
      they do so only interstitially; they are confined from molar to
      molecular motions.”
Yet another great Judge, Justice Carduzo stated („Nature of the Judicial
Process Lecture II‟, the Method of Sociology, the Judge as a Legislator): (pp

      “Each (the Legislator and the Judge) is legislating within the limits of
      his competence. No doubt the limits for the Judge are narrower. He
      legislates between gaps. He fills the open spaces in the law. How far
      he may go without travelling beyond the walls of the interstices
      cannot be staked out upon a chart. He must learn it for himself as he
      gains the sense of fitness and proportion that comes with years of
      habitude in the practice of an art. Even within the gaps, restrictions
      not easy to define, but felt, - however impalpable they may be – by
      every Judge and lawyer, hedge and circumscribe his action. They are
      established by the tradition of the centuries, by the example of other
      judges, his predecessors and colleagues, by the collective judgment of
      the profession and by the duty of adherence to the spirit of the law….
      None the less, within the confines of these open spaces and those of
      precedent and tradition, choice moves with a freedom which stamps
      its action as creative. The law which is the resulting product is not

      found but made.         The process, being legislative, demands the
      legislator‟s wisdom.”

      Innovation was the art of great masters like Lord Mansfield, Mashall,
Kent and Holmes, he says. (page 138)

      In the light of the various principles referred to above, Courts, in my
view, even if they cannot, because of Art 37 issue directions to the
Government to separate the Judiciary from the Executive within a time limit,
they can direct the Government to conform to the principle of an
independent judiciary and to conform to Arts 234, 235 of the Constitution of
India and for that purpose, require bringing into being standards set by the
High Court for recruitment of judicial officers in terms of basic
qualifications and experience at the bar, and for their control and
supervision,- both judicial as well as administrative – by the High Court
under Art 235 and that officers dealing with civil and criminal adjudication
devote their entire judicial time only for judicial purposes, that judicial
offices are not under the control of the Executive, that they should have no
connection with the Executive department controlling the prosecution
agency and so on. These being the fundamentals of any „independent,
impartial and competent‟ judiciary, these can certainly be the subject of
directions that can be given by the Courts. The source of power to issue
these directions „overlaps‟ Art 50 and is based on the basic structure of the
Constitution which also includes an „independent, impartial and competent‟
judiciary, Art 234, 235 etc. The Courts can work in the „interstices‟ and be
well within their legitimate jurisdiction. The Courts may not, however, set
time limits for separation of judiciary from executive for that is barred by

Art 37. The Court can also call for information on separation and monitor
the progress so that the Government is kept alive to the need to conform to
Art 50.

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