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Report No. 14

41. Separation of Judicial and Executive Functions.

1. Constitutional directive and the present position.-

Notwithstanding the directive principle in Article 50 of the Constitution that the State shall take steps to separate the judiciary from the executive in the public service of the State, a large number of States have failed to carry out the separation. The present position is that the judiciary has not been separated from the executive in Assam, Orissa, Rajasthan, West Bengal and in portions of the States of Punjab and Madhya Pradesh which as they existed before the re-organisation of States. In Uttar Pradesh, in some districts, judicial officers (criminal) are not entrusted with executive duties but the supervision of their work and their promotions rest with the executive. In Bihar, separation has been introduced in twelve out of the seventeen districts constituting the State.

2. Purpose of reform.-

The real purpose of this reform is to ensure the independent functioning 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.

3. History of the movement for separation in British India.-

The importance of the freedom of the judiciary from executive control was recognised by the British as far back as 1793. In section 1 of Regulation II of 1793, it was stated that "the Government must divest itself of the power of infringing in its executive capacity the rights and privileges which, as exercising the legislative authority, it has conferred on the landholders. The revenue officers must be deprived of their judicial powers." Generations of eminent statesmen, administrators and judges have repeatedly pressed for this reform. Ever since the year 1886, the Indian National Congress has emphasised the urgency of this measure and called for its implementation from year to year.

In 1899, a body of distinguished men including Sir Richard Garth, a retired Chief Justice of Bengal and Lord Hobhouse made a representation to the Secretary of State for India urging upon him the need for the carrying out of this reform. More recently, the Islington Commission dealt with this question and, in an impressive minute, Sir Abdur Rahim, then a Judge of the Madras High Court, investigated all its aspects. A number of schemes were prepared to give effect to this change by distinguished men like Mr. R.C. Dutt, Sir Harvey Adamson Mr. P.C. Mitter and others, but they were not given effect to.

In several provinces, Committees were appointed with a view to work out this reform but their recommendations also remained unimplemented. It was obviously to the interests of the foreign rulers to entrench executive authority by bestowing upon at some judicial functions as well; and naturally, notwithstanding the acceptance of the principle and the insistent demands of various sections of the people, the reform was not carried out till after independence.

4. In the Indian States.-

Though the first steps to effect this reform in what was British India were taken after Independence, in several former Indian States the judiciary had been separated from the executive for a long time. Among such States may be mentioned the States of Cochin in Hyderabad.

5. Article 50 of the Constitution.-

So insistent was the public feeling in this matter that when the present Article 50 was being debated in the Constituent Assembly, there was a considerable body of opinion in favour of fixing a time-limit of three years in the Article itself for carrying out the separation. The time-limit, it appears, was eventually not fixed on the assurance of the Prime Minister, Shri 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.

We felt that after the consistent public opinion in favour of this change and the acceptance of it by the Constitution, its desirability would be beyond argument. Though the bulk of the evidence before us not only completely favoured it but called for its immediate implementation, there appeared to be in some quarters a reluctance to give effect to it.

It would be convenient at this stage to set out the manner in which the scheme of separation has been implemented in the major States of Madras and Bombay.

6. Scheme of separation in Madras.-

The introduction of separation in Madras followed the report of a Committee appointed in 1946 for the purpose of formulating a scheme. The separation has been effected in Madras by executive orders and not by statute. In the initial stages, the scheme was introduced only in a few districts; it was extended to other districts year by year, care being taken to observe the difficulties found in its working and to remove their causes. It was thus gradually brought into force in Madras State including the separated Andhra.

Allocation of function between executive and judicial magistrates.-Under the Criminal Procedure Code and other relevant statutes, the functions of a magistrate fall into three broad categories, namely-

(a) functions which are "police" functions in their nature, e.g., the handling of unlawful assemblies;

(b) functions of an administrative character, e.g., issue of licences for fireĀ­arms, and similar functions, and

(c) functions which are essentially judicial, e.g., the trial of criminal cases.

These functions were, till the introduction of the scheme, all performed by the Collector of the district and by a number of magistrates subordinate to and controlled by him. The essential feature of the scheme was that purely judicial functions coming under category (c) were transferred from the Collector and magistrates subordinate to him to a new set of officers who were no longer to be under the control of the Collector. Functions under (a) and (b) were to continue to be discharged by the Collector and the revenue officers subordinate to him.

Officers performing functions in category (c) were to be called "judicial magistrates" and those performing functions in categories (a) and (b) were to be called "executive magistrates." In the category of judicial magistrates were the District Magistrates, the Sub-divisional Magistrates, the Additional First Class Magistrates and the Second Class Magistrates (Sub-Magistrates). The executive magistrates were the executive officers of the revenue department, namely, the Collectors, the Revenue Divisional Officers, the Tahsildars and the Deputy

Tahsildars on whom the responsibility for the maintenance of law and order was to continue to rest. The Collector was, by virtue of his office, to retain some of the powers of the District Magistrate and was to be called the "Additional District Magistrate". Similarly, the Revenue Divisional Officers continued to be ex officio First Class Magistrates and Tahsildars and the Deputy Tahsildars, ex officio Second Class Magistrates. These officers were not to exercise any judicial functions in the sense that they were not to try any criminal cases. Their powers were restricted to the making of emergency orders under sections 133 to 144 of the Code of Criminal Procedure.

They were also given powers to bind over persons to keep the peace under section 107 of the Code of Criminal Procedure. Powers under sections 108 to 110 were given exclusively to the judicial magistrates. Powers under section 144 could, however, be exercised by both classes of magistrates. Powers of revision under sections 435 to 438 were to be exercisable by the judicial magistrates alone. The jurisdiction in disputes regarding immovable property (under section 145) and the following sections could be exercised by the executive magistrates. These changes were brought into effect by G.O. No. 3106 Public (Separation), dated 9th September, 1949, which has been from time to time amended.

7. The Bombay Scheme.-

In Bombay (as constituted before the reorganization of States), a similar scheme was brought into effect by the passing of the Separation of Judicial and Executive Functions Act, (XXIII of 1951). The main points of distinction between the Madras and the Bombay schemes are that, whereas in Madras the head of the judicial magistrates in a district is the District Magistrate (Judicial), in Bombay the head is the Sessions Judge and that, whereas in Madras powers under sections 108 to 110 of the Criminal Procedure Code are exercisable only by judicial magistrates; in Bombay these powers are left to be exercised by executive magistrates.

8. Judicial magistrates under the High Court.-

It may be pointed out that in both the States the judicial magistrates are, like civil judicial officers, under the administrative control of the High Courts.

We annex at the end of this Chapter a statement showing some of the salient features of the allocation of powers and functions under the Criminal Procedure Code in the schemes of separation in Madras and Bombay.

9. Extent of separation.-

In the other States or parts of States where separation has been introduced, the Madras method of issuing,executive instructions has been followed and the allocation of powers and functions is broadly on the same pattern as in Madras or Bombay with changes in the nomenclature of the officers. The States in which separation is now in force are Madras, Andhra Pradesh, Kerala, Mysore, Bombay excluding Vidarbha, the Madhya Bharat and Vindhya Pradesh areas of Madhya Pradesh, the PEPSU region of the Punjab and twelve districts of Bihar.

The scheme in U.P. (Not real separation).- In Uttar Pradesh, a scheme of what is called separation has been introduced by executive orders in some districts. In certain districts, some of the officers, called judicial officers, were appointed whose duties were only the trial of criminal and revenue cases; they had no executive duties. They were not to be under the control of the Collector and the District Magistrate. They were, however, placed under the control of the Commissioner of the division through an Additional District Magistrate (Judicial).

These judicial magistrates devote their time exclusively to the trial of cases. Powers under sections 107, 108 to 110, 144 and 145 of the Criminal Procedure Code are, it appears, being exercised by the executive magistrates. The High Court has no control over these judicial magistrates. It will thus be clear that the system of separation which prevails in some of the districts of Uttar Pradesh is only a separation in form; the substance of separation, namely, the freeing of the judicial officers from executive control has not been achieved .

10. Critics of separation (Views of the Punjab Government).-

The Chief Secretary of the Punjab Government who purported to represent the views of his Government stated that, "in the context of the situation that obtains in the Punjab, taking into consideration the incidence of crime and the nature of crime, the communal atmosphere, the constant law and order problem, Governments are naturally keen to have as effective a machinery under their disposal as possible for dealing with different types of situations and that Government's view is that if there is complete separation, probably the Government's hands would not be as strong in dealing with crimes or dealing with law and order problem as they would be without separation".

According to him, the local magistrate is, in the eyes of the Government, responsible for the maintenance of law and order and by reason of his constant contact with the police he is able to exercise control over the law and order or the crime situation. He stated that the Government felt that they should have some sort of control over the proceedings in a criminal case right to its end. This officer had to concede that the local magistrate's viewpoint is not "cent per cent. judicial" and that he has always an eye on the law and order problem in his ilaqa. It was further said that, "the executive magistrates always look up to the Government for promotion and advancement in service and that the judicial magistrates would not do that and therefore they would not bother about the law and order situation".

In effect, the officer seemed to plead for the perpetuation of the very evils which the separation of the judiciary from executive control is designed to remedy. Indeed, what is said seems to imply that the magistrate, in dealing with the case, should not be governed by strict rules of evidence and should, as it were, be free to act upon his belief that the person before him is guilty. This seems to us to be a complete negation of the very foundation of the system of our criminal jurisprudence which presumes innocence in favour of the accused.

The Inspector-General of Police of the Punjab also gave evidence before us and his view was that the judicial magistrates asked for too high a standard of evidence and that, even when they convict persons, the sentences awarded were too low having regard to the nature awl frequency of the offence.

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