Clashes between Judiciary and Executive: A boon or curse

This article was written by Ashutosh Jain, a student of Institute of Law, Nirma University, Ahmedabad. 

On a casual glance at Indian federal structure, one may inclined to say that India has adopted the doctrine of separation of power in its true sense. Under Indian Constitution, the executive powers lie with the President[1], the legislative power with the Parliament[2] and the judicial powers with the Judiciary.[3] But on a careful study of Indian Constitution, it can be well understood that the doctrine of separation of power has not been accepted in India in its true sense. Though article 53 (1)[4] and 154 (1)[5], empowers, the President and the Governors of the states, the executive powers respectively, but there is no specific provision in the Constitution, empowering any organ with legislative and judicial powers.[6] Though the president is the head of the executive but article 123[7] and article 356[8] of the Constitution, empowers the President to issue ordinances or make laws for the state when the state assembly is dissolved. Similarly the President also performs the judicial functions.[9] The complexity of the overlapping powers can be traced from the Constituent Assembly Debates, where the need, implementation and consequences of the doctrine was discussed in the detail manner. Few members of the Constituent Assembly endorsed the implementation of the doctrine in its true sense, while the rest disregarded the idea. Professor, K. T. Shah,[10] in the constituent assembly debates, supported and argued for water tight separation of powers. He moved article 40-A[11], which states that:-

“There shall be complete separation of powers as between the principal organs of the state, viz., the Legislative, the Executive, and the Judicial.”

 the power was concentrated in one person, led to many evils, culminating in civil war, have evolved the better concept of separation of power, which have been supported around the globe. Therefore, the Indian Constitution should separate the powers among the three organs, in order to avoid any conflict in future. And therefore, he argued that judiciary should be completely independent of executive and legislature.[12] Prof. Shah strongly argued for the independence of Judiciary, in the constituent assembly debate, he argued that,

“so long as you have not merely the combination of the Judiciary and the Executive, but also the possibility of translation from a high judicial officer to an equally high or sonorous executive office; so long your judiciary be open to suspicion, so long your administration of justice would suffer by personal privileges or personal ambition, and so long, therefore, you will not be able to maintain your civil liberties to the degree and in the manner of purity that is highly desirable in a country like this.”[13]

The motion forwarded by Prof, K. T. Shah, was negative by the constituent assembly with the view that India had adopted ‘Parliamentary System of Government’ and therefore, water tight separation of powers would not be possible. Thought the assembly agree to the fact that Supreme Court of India would be independent of executive and legislature. Therefore Indian Constitution does not enjoy water tight separation

On November 24, 1948, Dr. B. R. Ambedkar in the constituent assembly, moved the amendment to insert Article 39-A that “State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separation of judiciary from the executive in the public services of the state.”[14] The amendment was criticised by the member of the assembly as many members did not find any need of the separation of Judiciary from executive in free India, Mr. T. T. Krishnamachari, the Hon’ble member of the house, believed that by giving enormous power to the judiciary, the legislation might lost control over it except by the means of ultimate removal and it might create a Frankenstein, which would nullify the intentions of the government. But the house believed that separation of judiciary from the executive is the ‘fundamental principal’, which have remained same and cannot changed even after independence. Therefore with huge debate over the independence of judiciary and discussions regarding separation of power, article 39-A, by replacing word ‘secure’ up to ‘separation of’ with the word ‘separate’ was adopted on November 25, 1948,[15] as “The State shall take steps to separate the judiciary from the executive in the public services of the State.”[16]

The apprehension of losing control over judiciary does not hold water, as history itself gives evident facts, which prove the necessity of separation of power and independence of judiciary. In the 1600’s the judges in Britain used to hold office ‘at the Kings pleasure’, this not only means that king used to appoint the judges, but also the judges who displeased the king or his government, were sacked from the office. This compelled the appointed judges to interpret the law according to the will full demands of the king. This led to the passage of the ‘Act of Settlement, 1700’, according to which, though the judges may be appointed by the Crown, but the judges will hold the office “during good behaviour”, which means, a judge can only be removed by the join address of House of Lords and House of Commons, for some crime or some gross form of moral behaviour.[17]

In the light of above it can be well understood that independence of judiciary is a important part of well established order in the state. In the recent times in India, there have been many clashes between judiciary and executive, but all the these clashes lead to the fruitful debate and control over the concentration of power.

[1] Article 53. (1) of the Constitution states that, “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”

[2]Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State

[3] Id

[4] Supra Note 1

[5] Article 154 (1) of the Constitution states that, “ The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution”

[6] Thakkar, C. K., “Administrative Law”, Eastern Book Company, Second Edition, pg 50

[7] Article 123 of the Constitution empower the President with Ordinance making power, it states that “If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require”.

[8] Article 356 of the Constitution, empowers the President to declare President’s Rule in a particular state on the report of governor.

[9] Union of India v. Jyoti Prakash Mittar, AIR 1971 SC 1093.

[10] Member of Constituent Assembly,

[11] Constituent Assembly Debates, vol VII, pg 959

[12] Constituent Assembly Debates, vol VII, pg 960.

[13] Id

[14] Constituent Assembly Debates, vol VII, pp 582.

[15] Constituent Assembly Debate, vol. VII, pp 593

[16] Constituent Assembly Debate, vol VII, pp 585

[17] Ian Loveland, “Constitutional Law, Administrative Law, and Human Rights: A critical Introduction” Oxford University Press, Edition 6, pg 54-55.