"The general principle involves two consequences first, that a judge or magistrate who tries a case must not be in any manner connected with the prosecution, or interested in the prosecution. Second he must not be in direct administrative subordinate to anyone connected with the prosecution (or indeed the defence).
Quite clearly it is impossible for a judge to take a wholly impartial view of the case, he is trying if he feels himself to any extent interested in or responsible for the success of one side or the other. This is the first aspect. It is equally impossible for him to take an impartial view of the case before him if he knows that his posting, promotion, and prospects generally depend on his pleasing the executive head of the district, the District Magistrate, who is also the head of the local police, who has frequent confidential conference with them, and generally control the works of the Police Superintendent. Thus the separation of functions means and involves the elimination of these two evils. That they are evils few will question."
(Meredith J. as quoted in (1949) 2 Indian law Review, P. 102
also quoted in the Commentary on the Constitution of India by Shri DD Basu, Volume 7, Page No 6736)
Granville Austin in 'The Constitution: Cornerstone of a Nation' describes Article 50 of the Constitution as 'the conscience of the Constitution'. It is no doubt true that the doctrine of Separation of Power is an entrenched principle in the Constitution of India and an essential constituent of rule of law. Independence of Courts from the Executive and Legislature is fundamental to the rule of law. However, the Indian Constitution does not provide any express provision for 'Separation of Higher Judiciary from Executive or Legislature' like the Constitution of Bangladesh, Pakistan and West Germany. However, Article 50 of the Indian Constitution, as enshrined in form of Directly Principles in Part IV, provides that "the State shall take steps to separate the Judiciary from the Executive in the public services of the State." In one reading, Article 50 projects that it is made for the separation of judiciary as whole (both Higher Judiciary and Subordinate Judiciary) from executive. However, after the deep analysis of the legislative history of Article 50, as provided further in this writing, will evince that the paramount object of Article 50 was always to take steps for the 'Separation of Subordinate Judiciary from Executive'. However, the Constitution of Bangladesh, Pakistan and West Germany did not make any difference between their higher judiciary and subordinate judiciary in setting forth the independence of judiciary.
At this juncture, it is vital, to set forth the relevant provisions of the Constitution of Bangladesh, Pakistan and West Germany which is couched in almost similar terms as that of Article 50 of the Indian Constitution.
Article 22 of the Constitution of Bangladesh: "The State shall ensure the separation of the judiciary from the executive organ of the State."
Constitution of Pakistan as adopted on 12-04-1973: In preamble, it is stated "wherein the independence of the judiciary is fully secured".
Article 175 (3) of the Constitution of Pakistan: "The judiciary shall be separated progressively from the executive with fourteen years from the commencing day."
Article 20 (2) of the West German Constitution (1948): "All State authority …shall be exercised…. by means of separate legislative, executive and judicial organs."
It is relevant to note that the said provisions of the Constitution of different countries mentioned the words such as "judiciary" and "judicial organs" without further mentioning the words like "in the public services of the State" as mentioned under Article 50. However, almost all the landmark Judgements passed by the Hon'ble Supreme Court of India including the NJAC verdict (2015), in evolving the doctrine of Independence of Higher Judiciary, have strongly relied on Article 50 of Indian Constitution but seem to disregard the importance of the words "in the public services of the State" and its legislative history. Since, the Indian Judiciary never wanted to make "Independence of Higher Judiciary" amorphous in the "challenger deep of the Indian Constitution", it had to rely on Article 50 of the Constitution to take the support. Ergo, it behoves the author to scan the anatomy of Article 50 through its legislative history and put forth that why Article 50 never meant for the separation of higher judiciary from the executive and that why relying on the same by the Courts for "independence of Higher Judiciary" is untenable in the eyes of law.
Brief Historical Aspect Of Article 50:
The East India Company, when came to India as a trader, received the grant of the Diwani in 1765 and became trader Sovereign. In that time, the original judicial function of the Collectors of the company was to preside over the civil courts, while Criminal justice was to administer by the Muslim officers under the Muslim law as earlier. In 1781 the collectors were vested with the magisterial powers and the supervision of the criminal justice was taken over by the criminal courts established by the company. Warren Hasting who was great protagonist of Separation of functions, in 1793, made at his instance the following announcement:
"The revenue officers must be deprived of their judicial powers".
However, in 1871 a backward step was taken when the magisterial powers were transferred to the collectors from the District Judges. Thus, in this time, the Collector came to combine in himself the functions of the administrator, prosecutor and judge.
It is to be noted that some pictures of the said combination was projected in the Memorandum submitted by the Government of India to the Indian Statutory Commission, (1930), Vol. V, p. 812, Para 101, which can be quoted as:
"As Chief Magistrate of his district he is responsible on one hand for supervising on the administrative side the magisterial work of the subordinate magistrates, and on the other hand, through the executive powers conferred mainly by the Code of Criminal Procedure, for maintaining peace and good order through his district. For this latter purpose also he exercises the general control over the police…"
A more detailed passage can be found in "The Imperial Gazetteer of India, Vol. IV (1907) at Page 153 to 154 which castes a shadow on the genesis of the executive-magistracy in India and its unjustifiability. It is provided herein below:
"Another controversial mater is Union of Executive with Judicial function. The unit of British India administration is the District Judges and the Chief Executive officer in cash is the Collector-Magistrate or Deputy Commissioner. In his executive capacity this official is charged with the collection of the various branches of the revenue, with a variety of other administrative functions. At the same time, he is the chief local magistrate of the first class, and can undertake such criminal work, original and appellate as he chooses…. Moreover, other magistrates of the first class are almost invariably also assistant or Deputy Collectors and his immediate subordinates. But to the western mind the arrangement may seem anomalous; and it has been urged that, not only that the Collectors judicial authority should be taken away, but that, in the subordinate ranks also, executive and judicial functions, should be dissociated and signed to different officers…"
It is to be noted that Criminal Procedure Code, 1898 combined the executive and judicial functions in the hands of the Magistrate, who were under the control of the Provincial Government through the District Magistrate.
It is relevant to mention here that while taking into consideration of the said facts and the problem between the functions of District Magistrate and Judicial Magistrate, Dr. Ambedkar moved a proposal on 24th November, 1948 to insert Article 39A in the Draft Constitution (Now Article 50). The debate was concluded on 25th November, 1948 with the Constituent Assembly eventually accepting the insertion of Article 39A in the Draft Constitution with the modification of the same with the addition of the words "Public Services of the State". It is, inevitable for present purpose, to look into the statement and perfect examples given by Dr. Bakshi Tek Chand in Constitutional Assembly Debates, Volume, Volume 7 at page 13 to find out the centripetal object of Article 50.
"One word more I have to say in this connection and that is, that with the advent of democracy and freedom, the necessity of this reform has become all the greater. Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the administration of justice. Those of you, who may be reading news paper reports of judicial decisions lately, must have been struck with this type of interference which has been under review in the various High Courts lately. In one province we found that in a case pending in a Criminal Court, the Ministry sent for the record and passed an order directing the trying Magistrate to stay proceedings in the case. This was something absolutely unheard of. The matter eventually went up to the High Court and the learned Chief Justice and another Judge had to pass very strong remarks against such executive interference with the administration of justice.
In another province a case was being tried against a member of the Legislative Assembly and a directive went from the District Magistrate to the Magistrate trying the case not to proceed with it further and to release the man. The Magistrate who was a member of the Judicial Service and was officiating as a Magistrate had the strength to resist this demand. He had all those letters put on the record and eventually the matter went to the High Court and the Chief Justice of the Calcutta High Court made very strong remarks about this matter.
Again in the Punjab, a case has recently occurred in which a Judge of the High Court, Mr. Justice Achru Ram, heard a habeas corpus petition and delivered a judgment of 164 pages at the conclusion of which he observed that the action taken by the District Magistrate and the Superintendent of Police against a member of the Congress Party was mala fide and was the result of a personal vendetta. These were his remarks.
In these circumstances, I submit that with the change of circumstances and with the advent of freedom and the introduction of democracy, it has become all the more necessary to bring about the separation of the judiciary from the executive at the earliest possible opportunity."
Though, the statement made by the other members of the Constituent Assembly, are not being mentioned here for the sake of brevity. However, all the members focused on the pressure created by the District Magistrate and Politicians on the subordinate judges i.e. Judicial Magistrate and not on the judges of the higher judiciary.
Thus, after Independence, in view of Article 50 some statute took separate steps to divest the judicial powers from executive magistrate but the uniformity was lacking. Then the Law Commission of India in its 14th report on the Reform of Judicial Administration commented on the lack of zeal in the implementation of the Article 50. It recommended that the CrPC should be amended. Thus, the CrPC, 1973, was enacted to provide complete separation of the executive functions in the executive magistrate and judicial functions in the Judicial Magistrate under Section 6 of CrPC.
However, no judgement of the Supreme Court took into consideration of the said historical aspects and directly relied on Article 50 for propounding the 'Independence of higher Judiciary".
That Justice Y.V. Chandrachud in the case of Union of India v. Sankalchand Himatlal Sheth. (1977) 4 SCC 193 (Five Judges Bench) referring to the independence of the judiciary and its relation to Article 50 of the Constitution stated, which can eminently be emanated as:
"Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independence of the judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State."
Further, in the Supreme Advocate on Record Association and another Vs UOI, (1993) Supp 2 SCR 659 (Second Judges Case), counsel for different petitioners submitted that Article 50 enshrined under Indian Constitution the principle of the separation of Judiciary from Executive. It was appalling that all the judges of the Hon'ble Supreme Court accepted the said submissions of the Petitioners.
It is interesting to note that the legislative history of Article 50 was discussed in detail in Supreme Court Advocates-on-Record Ass'n v. Union of India, (2016) 4 SCC (Fourth Judges Case) in Para No. in Para. 322 to 333. However, again the Hon'ble Supreme Court disregarded the legislative history and opined in Para No. 331 in the following words:
"331. With the need for avoiding details in the Constitution, the Draft Constitution did not specifically provide for the independence of the judiciary other than the subordinate judiciary. If this is looked at quite plainly, it would appear anachronistic to hold a view that Article 39A of the Draft Constitution required the subordinate judiciary to be independent and separate from the executive but it was not necessary for the superior judiciary to be independent or separate. Such an obvious anachronism cannot be attributed to the Constituent Assembly. One must, therefore, assume that either the superior judiciary was already independent (and this needed no iteration) or that if it was not independent then, like the subordinate judiciary, it must be made independent, with the executive not being permitted to interfere in the administration of justice. Either way, separation between the judiciary and the executive with the intention of having an independent judiciary was a desirable objective.
It is to be noted that the Hon'ble Supreme Court in Fourth Judges Case, itself provided that 'Draft Constitution did not specifically provide for the independence of the judiciary other than the subordinate judiciary'. However, it extended the Application of Article 50 even to the higher Judiciary.
The eminent jurist Late Shri H.M. Seervai in his book Constitutional Law of India in volume III, Pahe No. 2931 stated that Article 50 is Directive Principles of State Policy and it cannot "enshrine' any principle of the separation of judiciary form the executive". It is expressly provided by Article 38 that court shall not enforce the directive principles. Therefore, Legislatures are free to pass any law disregarding the directives in Article 50. In the case of Gurdial Singh vs State (1957) A.Punj. 149, the Petitioner challenged the validity of the "Punjab Gram Panchayat Act, 1952" on the ground that it violated Article 50 of the Constitution. The Act was upheld by the Court on the ground that Article 50 was merely directory.
It is essential to highlight that it is incontestable that Judiciary has to be independent and it is an essential attribute of rule of law. It is also agreed that the heart of the judicial independence is the judicial individualism. However, it does not mean, that in order to propound the judicial independence in the higher judiciary, the support of non-applicable article should be taken. The incessant disregard and ignorance of the legislative history of any article of the Constitution by the Apex Court may lead the young legal minds in the dark forest of misinterpreting the law without paying any heed to legislative history.
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