Why are Judiciary & Executive Separate? This Happened in Constituent Assembly...

What led to the separation of powers? Why were some Constituent Assembly members against it? And why did it still prevail?

(Image courtesy: Chetan Bhakuni/The Quint)

"At first glance, the (Constituent) Assembly’s debates on the Judicial provisions seem to have been disproportionately concerned with the administrative aspects...and more pertinently, with the mechanism for choosing judges. A closer look, however, shows that the members’ interest in these apparently routine matters...was prompted by the desire to insulate the courts from attempted coercion by forces within or outside the government. (emphasis added)."

– Granville Austin, The Indian Constitution: Cornerstone of a Nation

Article 39A, which eventually became Article 50 of the Constitution of India, provides for separation of the judiciary from the executive.

Article 50 of the Constitution of India: The State shall take steps to separate the judiciary from the executive in the public services of the State.

But this provision was not adopted without significant debate.

File photo of Dr BR Ambedkar.

(Image courtesy: Wikimedia Commons)

“Sir, it is an important amendment and I hope you will allow the House to express its opinion on it,” Pandit Hirday Nath Kunzru had requested the Vice President when the matter was brought up by Dr BR Ambedkar in the Constituent Assembly.

What followed was a passionate exchange of opinions, by both who were against the addition of (then) Article 39A and those who were for it. Prime Minister Jawaharlal Nehru, on his part, seemed in favour of the proposal, even as he said — “It should not be taken that any matter put forward here comes from the Government of India as such, although the government is intensely interested in it naturally and would like to place their views before this House whenever it is possible.”

File photo of Jawaharlal Nehru.

(Photo: The Quint)

Still after a fair amount debate, the motion was adopted on 25 December 1948, and the provision on separation of the judiciary from the executive was added to the constitution.

In a few days from now (26 January), India will complete 73 years since the Constitution of India came into effect. Thus, in the run up to that, and amid a seeming increase in executive interest in the affairs of the judiciary (with comments from high government functionaries on how the courts should carry out their duties), it may be pertinent to look at what led to the separation of powers. Why were some people against it? And why did it still prevail?

A Brief History: Recap by a Member of the Constituent Assembly

"The question of the separation of executive and judicial functions is not only as old as the Congress itself, but indeed it is much older."

Dr Bakshi Tek Singh to the Constituent Assembly

As pointed out by Dr Bakshi Tek Chand, Chief Justice of the Lahore High Court prior to the Partition of India, and a member of the Constituent Assembly, the quest for the severance of the two organs went all the way back to the 1850s.

In British India, the lines between executive and judicial responsibilities were frequently a blur. The district magistrate carried out both the executive, as well as the judicial functions.

In the words of RK Sidhwa, another member of the Constituent Assembly, the district magistrate was "the prosecutor and...also the administrator of justice."

Naturally this paved way for concerns about the administration of justice, and Dr Chand further informed the Assembly that the matter was first discussed as early as in 1852, "when public opinion in Bengal began to express itself in an organised form". He added:

"After the Mutiny, the movement gained momentum and in the early seventies, in Bengal, under the leadership of Kisto Das Paland, Ram Gopal Ghosh, who were the leaders of public opinion in those days, definite proposals with regard to the separation of judicial and executive functions were put forward."

Other leaders like Man Mohan Ghosh and Surendranath Bannerji too took up the mantle, and "year in and year out raised this question in all public meetings."

In 1885, the Congress convened its first session in Bombay, and this administrative reform was put in the forefront of their programme.

"Later on, not only politicians of all schools of thought, but even retired officers who had actually spent their lives in the administration, took up the matter and lent their support to it," Dr Chand pointed out.

Objections and Counter

So if the origins of the proposal could be traced in India's past, why wasn't everyone on board?

Some members of the constituent assembly still opposed the proposal in 1948 because they felt that it had relevance only in the British rule. Now that India was free from clutches of colonisers, as per them, there was not much need for such additions.

Seeking an adjournment, Constituent Assembly member B Das told the Vice President:

"When the people were harassed by the former British Government, we thought we had no justice from the British Government and we wanted separation of the judiciary from the executive. That suspicion does not exist now. We have to examine whether separation today is necessary."

They also felt that it would not be feasible to separate the judiciary from the executive, on financial grounds.

Then why did the separation prevail? The objections were countered by others. For instance, expressing surprise at Das' argument, Sidhwa said:

"If a principle, a basic principle was bad at the time of the British regime, I fail to understand how it can be good in free India...can impartial justice be dispensed by the same person who prosecutes and also at the same time sits in judgment over that case?"

According to Chand, democracy and freedom heralded a greater requirement for separation of powers. He lamented:

“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 free administration of justice."

Chand also noted that a committee appointed by the Congress Government in Bombay to look into the financial cost of the separation, had already concluded that the separation of judicial and executive functions was feasible. 

The Years Since...

The Criminal Procedure Code (CrPC) was amended in 1973 (and the amendment brought into force in 1974), to pave way for complete demarcation of responsibilities. Various landmark pronouncements by the apex court have also upheld, reaffirmed and emphasised on the separation of the executive and the judiciary.

Granville Austin recounts in his book, that in 1948, a month after the publication of the Draft Constitution, a meeting was held by the justices of the Federal Court and the Chief Justices of all the High Courts. In that meeting the judges had opined that India must preserve ‘the fearless functioning of an independent, incorruptible, and efficient judiciary’. 

Separation of powers plays a crucial role in ensuring this. One has to only look back at what Chand said, what Sidhwa said, what Ambedkar said to understand why. And, as in any other democracy, it is a principle that must be fervently protected.

(This article is a part of the The Quint's 'Know Your Constitution' series, to celebrate 73 years of India being a republic. Click here to view the entire series.)