Components of the Independence of the Judiciary
The term separation of powers or trias-politica was initiated by Charles
de Montesquieu. For the very first time, it was accepted by Greece and then it
was widespread use by the Roman Republic as the Constitution of the Roman
Republic. Its root is traceable in Aristotle and Plato when this doctrine
became the segment of their marvels.
In 16th and 17th-century British politician
Locke and Justice Bodin, a French philosopher also expressed their opinion
regarding this doctrine. Montesquieu was the first one who articulated this
principle scientifically, accurately and systemically n his book Esprit des
Lois (The Spirit Of Laws) which was published in the year 1785.
The definition of separation of power is given by different authors.
general, the meaning of separation of power can be categorized into three
- Person forming a part of on organs should not form the part of other
- One organ should not interfere with the functioning of the other organs.
- One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of trias politica. This
principle visualizes a tripartite system where the powers are delegated and
distributed among three organs outlining their jurisdiction each.
Independence of Judiciary is an essential attribute of Rule of Law which is the
basic feature of Constitution of India. Judiciary must not be free from
executive pressure but also from other pressures. However, the concept of
independence of Judiciary has to be confined within the four corners of the
Constitution of India and cannot go beyond that. Independence of the Judiciary
is a wider concept which implies independence from any pressure or prejudice and
fearlessness from any centre of power.
Separation of Judiciary from Executive as contained in Article 50 of
Constitution of India in Part IV dealing with Directive Principles of State
Policy states that the State shall take steps to separate the Judiciary from the
Executive in the Public Services of the State.
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 subordination to anyone connected with the prosecution (or indeed
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
Granville Austin in The Constitution: Cornerstone of a Nation describes
Article 50 of the Constitution as 'the conscience of the Constitution of India'.
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 & Legislature is fundamental to
the Rule of Law. However, the Constitution of India 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 Constitution of India, 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 of the Constitution of India projects that it is made
for the separation of Judiciary as whole (both Higher Judiciary & Subordinate
Judiciary) from Executive. However, after the deep analysis of the legislative
history of Article 50 of the Constitution of India, will evince that the
paramount object of Article 50 of the Constitution of India was always to take
steps for the 'Separation of Subordinate Judiciary from Executive'.
Constitutional Provisions and Practice
The Constitution of India is the fundamental law of the land from which all
other laws derive their authority and with which they must conform. All powers
of the State and its different organs have their source in it and must be
exercised subject to the conditions and limitation laid down in it.
The Constitution of India provides for the parliamentary form of Government
which lacks strict separation between the Executive and the Legislature but
maintains clear separation between them and the Judiciary. The Constitution of
India specifically directs the State to separate the Judiciary from the
Executive in the Public Services of the State.
The Supreme Court has used this provision in support of separation between the
Judiciary and the other two branches of the State at all levels, from the lowest
Court to the Supreme Court. Although the nature of the Constitution of India
-whether it is federal or unitary - is doubtful, basically it provides for a
federal structure of Government consisting of the Union and the States.
The Union and the States have their distinct powers and organs of governance
given in the Constitution. While the Union and States have separate legislatures
and executives, they do not have a separate Judiciary. The Judiciary has a
single pyramidal structure with the lower or subordinate Courts at the bottom,
the High Courts in the middle, and the Supreme Court at the top. For funding and
some administrative purposes, the subordinate Courts are subject to regulation
by the respective States, but they are basically under the supervision of the
The High Courts are basically under the regulative powers of the Union, subject
to some involvement of the States in the appointment of Judges and other staff
and in the finances. The Supreme Court is exclusively under the regulative
powers of the Union. Subject to territorial limitations, all Courts are
competent to entertain and decide disputes both under the Union and the State
laws. The unitary character of the judiciary is not an accident but rather a
conscious and deliberate act of the Constitution makers for whom a single
integrated Judiciary and uniformity of law were essential for the maintenance of
the unity of the country and of uniform standards of Judicial behavior and
Brief Historical Aspect Of Article 50 of the Constitution of India:
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 casts a shadow on the genesis of the
executive-magistracy in India and its un-justifiability.
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 39-A in the Draft Constitution (Now Article 50 of the Constitution of
The debate was concluded on 25th November, 1948 with the Constituent Assembly
eventually accepting the insertion of Article 39-A 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 VII at Page 13 to find out the centripetal object of Article 50
of the Constitution of India.
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 circumstance 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
Thus, after Independence, in view of Article 50 of the Constitution of India
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 of the Constitution of India. It
recommended that the Cr. P. C should be amended. Thus, the Cr. P. C, 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 Code of Criminal Procedure, 1973.
Supreme Court on Independence of Judiciary
However, no Judgement of the Supreme Court took into consideration of the said
historical aspects and directly relied on Article 50 of the Constitution of
India for propounding the 'Independence of Higher Judiciary.
That Justice Y. V. Chandrachud in the case of [Union of India Vs.
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 of India 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 of India, 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 & Anr. Vs UOI,
(1993) Supp 2 SCR 659] (Second Judges Case), Counsel for different Petitioners
submitted that Article 50 of the Constitution of India 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 of the
Constitution of India was discussed in detail in Supreme Court
[Advocates-on-Record Ass'n Vs. Union of India, (2016) 4 SCC] (Fourth Judges
Case) in Para Nos. 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 39-A 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 Constituent Assembly. One
must, therefore, assume that either the superior Judiciary was already
independent (and this needed no reiteration) 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 of the Constitution of India even to
the Higher Judiciary.
An independent Judiciary is the sine qua non of a vibrant democratic system.
Only an impartial and independent Judiciary can stand as a bulwark for the
protection of the rights of the individuals and meet out even handed Justice
without fear or favour. The Judiciary is the protector of the Constitution and,
as such, it may have to strike down Executive, Administrative and Legislative
acts of the Central and the States Governments.
For Rule of Law to prevail, Judicial independence is of prime necessity. The
independence of the Judiciary is normally assures through the Constitution but
it may also be assured through legislations, conventions and other suitable
norms and practices. The Constitution or the foundational laws on Judiciary are
however, only the starting point in the process of securing Judicial
Ultimately the independence of the Judiciary depends on the totality of a
favorable environment created and backed by all State organs including the
Judiciary and the public opinion. The independence of Judiciary also needs to be
constantly guarded against the unexpected events and the changing social,
political, economic conditions; it is too fragile to be left unguarded.
The eminent jurist Late Shri H.M. Seervai in his book Constitutional Law of
India in volume III, Page No. 2931 stated that Article 50 of the Constitution of
India 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 of the Constitution of India.
In the case of [Gurdial Singh Vs State, AIR 1957 P&H 149], the
Petitioner challenged the validity of the Punjab Gram Panchayat Act, 1952
on the ground that it violated Article 50 of the Constitution of India. The Act
was upheld by the Court on the ground that Article 50 was merely directory.
The Constitution of India embraces the idea of separation of powers in an
implied manner. Despite there being no express provision recognizing the
doctrine of separation of powers in its absolute form, the Constitution of India
does make the provisions for a reasonable separation of functions and powers
between the three organs of Government. Rather it is more of a version of checks
For the smooth functioning of any Government, co-operation and co-ordination
among all three wings of the Government are necessary. Professor Garner said
that this doctrine is impracticable as working principle of Government. It is
difficult to divide the functions of each organ on an accurate basis.
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. This
doctrine has a great significance as it protects the liberty of the individual
from the arbitrary rule and prevents the organs from usurping the essential
functions of other organs.
Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature,
Email: [email protected], [email protected]