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Report No. 37

IV. Separation of Executive from the Judiciary

Another important factor which cannot, and has not to be omitted from the scope of our investigation is the effect of the Directive Principles contained in Article 50 of our Constitution about the separation of executive from the judiciary. This has not been overlooked altogether-but considered in a limited way.

It should not be overlooked that attempts are being made in different States for the separation of the judicial and executive functions. In certain States, separation has been effected by introducing local amendments of the Code of Criminal Procedure and in a large number by issuing Executive Orders without making any alteration in the Code itself.

As far as, I have been able to gather, such separation has been introduced by amendment of the Code of Criminal Procedure in Bombay which has now been enforced in the new States of Maharashtra and Gujarat, also in the Punjab which has also now after separation been effective in Chandigarh and Haryana. Recently in 1965 separation has been introduced in Mysore by an amending Act.

It had not been possible to consider in detail the provisions as introduced in the different States-as a matter of fact all the relevant literature and copies of all the Executive Orders could not be obtained.

I had in my personal capacity occasion to visit during the last few months a large number of States both in the Eastern and Western parts of India in addition to some in the North. From the discussions that I could have with Judges or Executive officers-in my private capacity-I found that discussion with the persons in direct authority threw greater light on the effect of particular provisions than a mere reading of the text of the provisions in the Amending Acts and Executive Orders could afford. The Commission could not have advantage of meeting representatives from the States-could not even obtain the written views from the different States about the provisions as proposed in the Report for a portion of the Code.

It will be noticed from Annexure 'A' how far attempts have been made in the different States for separation of Executive from the Judiciary.

As noticed already in a large number of cases copies: of the Executive Orders were not before us.

According to the Law Commission as expressed in the 14th Report, preference was made on many of the important topics and the policy and details as introduced in Bombay. In the present Report to be submitted by the Law Commission, on many of such points the recommendation made is based upon the Punjab view.

As stated above, for a proper appreciation and the effect of separation of executive from the judiciary, mere examination of the texts of the statutes or directions issued will not be sufficient: Reference has to be made to the responsible officers who had to apply these provisions to ascertain whether such provisions were salutary and practical. For this purpose, reference is essential to the State Governments, as such, and to examine representative witnesses, or in my view, obtain from questionnaire or memoranda the effect of such provisions. The provisions as we have found, in the three States to which references were made by the Commission on the present occasion differed in material particulars, and that by itself makes it more necessary to evaluate the effect of such rules as in the different States.

It cannot also be overlooked that some are very often influenced by notions of maintenance of peace and order; and whether one should have greater importance attached on maintenance of peace and order and rely more on police and the executive branch of the administration or emphasise the independence of the judiciary and rely more on the courts than on the Police. My view is definitely the latter one. Before the Commission arrives at a decision reference must be made as to how the Rules and procedure followed in different parts of India produced the desired effect and result.

As indicated already, we had not the time or opportunity even to discuss the details of the system and policy in vogue in the majority of the States, as we had not even copies of all the Executive Orders issued.

With a view to appreciate the implications of Article 50 of the Constitution "the States shall take steps to separate the judiciary from the executive in the public services of the State" divergent views have been expressed as noticed in the different Amending Acts and the Executive Orders issued by the majority of the State Governments.

To resolve these divergent view points, there is no other provision in the Constitution to interpret the implications of Article 50. But, it may perhaps be possible to refer to the provisions of Article 237 which is a consequential corollary to Article 50. Under Article 236 what categories of judicial officers would come under the purview of the expression "of District Judge" finds mention. There can, therefore, be no scope for any controversy that these functionaries are purely Judicial Courts.

It may be noticed that under Article 236(a) under the expression "District Judge", magistracy as a whole does not find mention except Presidency Magistracy. This is so because both executive and judicial functions are now combined in the same functionary from which judiciary has to be separated. To what extent, the judicial magistracy would be separated from the existing Executive pattern may be stated to have been in a way suggested under Article 237.

In order that these separated judicial magistracy would be brought under the effective and complete control of the High Court under Article 237, the Governor may have to fix a date by public notification from which date any class or classes of Magistrates in the State may be brought within the category of "judicial service" as finds mention under Article 236(b) subject to such exceptions and modifications as may be specified in the notification. Article 237, therefore, which may provide the clue to understand the implications under Article 50 may have to be stretched to its legal consequences so as to deduce the logical and lawful inference of the scope under Article 50.

"Any class or classes of Magistrates" as is mentioned under Article 237 can be properly construed if we would be in a position to appreciate the dictum of the classification of magistracy which in the absence of any clarification in our Constitution has to be referred to the relevant provisions under the Criminal Procedure Code by virtue of which the class or classes of Magistrates have been created.

Though, therefore, under section 6 in Chapter II of the Code of Criminal Procedure, different classes of Criminal Courts in India are mentioned difficulties arise in laying down the position and the powers of such Courts unless we travel into the latter parts of the Code of Criminal Procedure which in the present Report we are not discussing.

In my view, there is no escape from the conclusion that under the Directive Principles of the Constitution, in any matter in which evidence has to be taken by a tribunal or authority and decision has to be reached on appreciation of such evidence, that must be by a judicial authority which is to be independent of the Executive control in the fullest significance of their term.

It is not possible in this short note to discuss in detail the effect of such a principle on the different sections of the Criminal Procedure Code. I refrain from, therefore, at this stage to discuss even these sections which are dealt with in the present Report-like section 144 or sections 108 to 110 and many others.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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