India’s independent judiciary

A summary of the debate in the Constituent Assembly about the need for a separation of the judiciary.

In December 1948, the Constituent Assembly gathered to discuss the advantages and disadvantages of having a separate executive, legislature and judiciary. The advantages of a Parliamentary democracy were advocated the most strongly, thereby resulting in an interdependent executive and legislature (wherein the executive, or Prime Minister, is decided by the majority in the legislature). However, it was agreed upon to make the complete independence of the judiciary a Directive Principle of State Policy.

There were several reservations towards this amendment also, though –the primary one being the dangers of giving too much power to the judiciary. As T. T. Krishnamachari said, “In trying to give the judiciary an enormous amount of power, a judiciary which may not be controlled by any legislature in any manner except perhaps by the means of ultimate removal, we may perhaps be creating a Frankenstein which would nullify the intentions of the framers of this Constitution.” He also felt that it was too early to appoint such a responsibility on a judiciary whose members had not yet even been fully decided and had not yet shown themselves to be the best people for the job. This, in addition to the high costs of paying salaries of separate lawyers, judges, and executive officers, was why Krishnamachari and B. Das suggested that India make the decision for independent bodies in a year, when it had experience as a nation-state.

However, it was more fervently agreed upon that despite its shortcomings, an independent judiciary was essential for a democratic and accountable government. It was what the Congress had been demanding of the British on principle for years and had never got. An example was related by Dr. Bakshi Tek Chand, of an incident of the Ministry trying to get a Magistrate to stay the proceedings of a criminal court case against an official. This incident brings out how politicians interfered and would continue to interfere with the judiciary if this motion was not passed. In this instance, the High Court expressed its disgust with this attempt by the executive to influence the way they functioned, and today’s judiciary often shares the same sentiment, as we have seen by Chief Justice R. M. Lodha’s reaction to the government refusing to clear Gopal Subramaniam as a Supreme Court judge.

This incident, however, shows clearly that the anxieties of the Assembly Members were not unfounded. The appointment of Supreme Court judges is not the responsibility of the Prime Minister or anyone representing a particular party. However, Gopal Subramaniam’s critical remarks of the Modi government in its early weeks led to his segregation from a list of four Supreme Court Judge candidates, without the knowledge of the rest of the Chief Justices, resulting in his withdrawal from the candidacy. This type of interference of the executive with the judiciary’s functioning is exactly what the Constituent Assembly Members wanted to avoid.

As in most of their debates, the Constituent Assembly showed sharp awareness of both the daunting nature of their task in shaping laws, as well as the nature of the people they were trying to both represent and reform at the same time.The kind of segregation being practiced by the current Centre in appointing judges for the Supreme Court is clearly something the Assembly had the foresight to be wary of. This was the objective of making an independent judiciary a Directive Principle. And, as Shri Loknath Mishra went the extra mile in pointing out, good administration of justice is not just about an independent judiciary – it is about just laws, and laws which are intelligible to the masses, both of which he said India lacked. These conflicts are inherent in this group of people that were too far ahead of their time, and they mirror the conflict embedded in the Constitution, the conflict between representation and reformation.

Apoorva Tadepalli is an intern at the Takshashila Institution.

This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyses the debates on a particular issue.

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