Report No. 14

11. Contrary views.-

The view of the Punjab citizen was expressed by a Member of Parliament hailing from the Punjab in these words: "If the Punjab Government still thinks that they cannot control law and order situation with separation, all that I can say is that the Government is not taking a correct view of the situation. If there is any difficulty it has to be crossed over. The main thing is that the executive do not want to part with their power. Do they mean that they can control law and order situation better if they can secure the punishment for the crimes as they want? If they want to maintain law and order at that cost, then better abolish the judiciary".

12. Objection unsound.-

We have given our most anxious consideration to the view put forward on behalf of the Punjab Government as it was said to arise from factors peculiar to the Punjab. It is noticeable, however, that in the erstwhile State of PEPSU which now forms part of the Punjab, separation has been in force for a considerable time and it has not been suggested that the continuance of separation in that area has given rise to any special problems or that the crime situation in that part of the Punjab has been worse than in other parts of that State.

Views somewhat similar to those expressed by the Punjab Government were also expressed by certain officers of the police and the magistracy in Rajasthan and Madhya Pradesh.

13. Separation not affected law and order.-

On the other hand, we have before us the views of Inspectors-General of Police of all the States excepting the State of Kerala (where the Inspector-General did not give evidence) in which separation has been in force-in some of them for a considerable number of years-and their unanimous view was that the introduction of separation had not had any adverse effect on the law and order situation in their States. Indeed, some high executive officers welcomed the change as it had relieved the executive of the responsibility of some judicial work.

14. Other possible difficulties and their solution.-

A somewhat different aspect of the law and order problem in relation to separation was stressed by the view expressed by some witnesses that the judicial magistrates very often failed to appreciate the difficulties encountered by investigating officers and the executive authorities and demanded unattainable standards of proof in weighing the evidence before them in criminal cases. It was stated that not infrequently they demanded a standard of proof in criminal cases which was higher than even that required by law and acquitted the accused in cases where they deserved conviction.

This certainly is a matter which requires careful consideration. Though it is necessary that magistrates should be independent of the control of the executive, they should at the same time be made aware of the difficulties of the executive in dealing with the matters which come before them and the procedure adopted by the police in the investigation of cases. Independence from the control of the executive does not mean looking askance at the executive or having a tendency to add to the difficulties of the executive.

It appears to us, therefore, that it would be desirable to introduce in all the States where the judiciary is separated from the executive a system of training judicial magistrates such as now obtains, for instance, in the State of Madras. In that State, judicial magistrates are, before they are posted to their offices, subjected to a period of training in the revenue and police departments which enables them to appreciate the difficulties of executive officers and the way in which the investigation of crime is conducted. The witnesses who raised this aspect of the question before us readily admitted that such a course of training would result in the removal of the difficulties which they had mentioned.

It was also suggested that judicial magistrates would not be able to deal effectively with disturbances and like situations and that separation would, therefore, involve the recruitment of a larger number of executive magistrates who are trained to deal with such situations. An answer to such an objection was given by the Chief Secretary to the Uttar Pradesh Government who stated that if a larger number of executive staff was needed to deal with such situations, the necessary personnel could be engaged and that, by and large, the number of officers needed, taking the judicial and executive magistrates together, would not be larger and the cost to the Government would not increase. This objection can, moreover, be met by adopting the Madras practice of training the judicial magistrates to deal with emergent situations so that their services can be utilised in such situations in the absence of executive magistrates.

15. Separation necessary for efficiency.-

The problem of separation far from receding to the background by reason of the advent of freedom, as is suggested in some quarters, has really become more acute from the point of view of the efficiency of the magistracy. In a number of States, evidence was given before us of gross neglect of judicial work by executive magistrates by reason of the increased demands of their executive duties.

It was pointed out that, with the advent of a number of welfare activities carried on in the country-side, new and important duties had fallen on executive officers which left little time to them to devote to magisterial and other judicial work. Increasing expansion of governmental activities has also made it very difficult for the District Magistrate to spare any time for the supervision of the magisterial work of his subordinates. It was frankly admitted by a number of District Magistrates in the revenue department that, in the circumstances which had arisen, supervision by them over the performance of magisterial duties by their subordinates hardly existed.

The evidence showed that this situation had led in certain parts of Bihar, Madhya Pradesh and Rajasthan to extraordinary delays in the disposal of numerous cases pending before the magistrates. It may, therefore, be safely asserted that even apart from the need for giving effect to the universally acknowledged principle that the judiciary should be independent of the control of the executive, separation is most urgently and immediately called for to ensure the efficiency of the magistrates and the removal of the extreme delays in the disposal of criminal proceedings in the magistrates' courts.

16. Reform necessary even after Independence.-

The argument that the advent of Independence had completely altered the situation in respect of separation and that there was no longer any need for it as the executive is now under the control of a popular government may be answered in the following words of the report of the Madras Committee on separations:1-

"however vigilant and however anxious a Minister at the top may be, it would be humanly impossible for him to ensure that things never go wrong. As a very senior and experienced Advocate says in a memorandum he has sent to us: 'An executive is an executive whether British or Indian'. If it were as simple and easy as the argument sounds to control all the acts of the agents of executive power, it becomes difficult to understand why such elaborate safeguards and balances of power are provided for in the English and American constitutional systems."

1. Report of the Committee on the Separation of the Judiciary from the Executive, 1946, p. 48, para. 135.

17. Judicial Magistrates responsible persons.-

An equally effective answer was given by that Committee to the suggestion that magistrates under the control of the High Court exact standards of proof impossible of achievement and that this results in crimes going unpunished:

"Underlying the discussion of this question there is an apprehension that an independent magistracy will favour the criminal especially when the magistrate is a lawyer but that if he were under the control of Government, he would look upon the Government point of view with more favour. This is not generally true. To the extent that a magistrate decides a case without fear or favour, it is a commendable attitude and not one to be deprecated. In times of disorder, magistrates do take cognizance of existing conditions and recognize the exceptional demands in the interests of public peace. The High Court has never been unmindful of the claims of order, and there is no reason to suppose that they will ignore them now that a popular Government has taken the place of the old."1

1. Report of the Committee on the Separation of the Judiciary from the Executive, p. 49, para. 137.

18. Power of the executive not weakened.-

It needs to be emphasised at the risk of repetition that the scheme of separation will in no way "make the path of the wrong-doer easier or weaken legitimate authority. All that we are trying to ensure is that in the conduct of criminal trials, extra legal means are not held in terrorem to weight the scales in favour of the prosecution."1 The powers necessary for maintaining law and order in the hands of the Collector and his subordinates will remain unaffected. What will be ensured is that those administering justice, i.e., those conducting criminal trials shall not be in any manner under the executive so that not only will justice be done but that justice will be manifestly seen to be done.

1. Ibid., p. II, para 32.

19. Financial objections.-

The increased cost of separation is, perhaps, the oldest argument used against its introduction. As far back as 1837, Lord Auckland, dealing with the subject of separation observed that "financial considerations" were one of the grounds which made the question "one of great difficulty." The increased financial burden was thereafter repeatedly referred to by officials and non-officials dealing with the matter. In 1897 Mr. C.D. field, then a Judge of the Calcutta High Court, writing in the Asiatic Quarterly Review for January, attacked what he called the "financial argument" in these words:-

"In 1860 the financial difficulty was the strongest argument advanced against complete separation and ever since, as other means of defence have been weakened by time and progress, this big old gun has been brought out as an irresistible piece of artillery. But time has affected this also, and it can no longer do. If the change would cost a little, would not this little be spared from the tax on justice, that justice may be done? Very little (if anything) would be required if the reform were carried out by someone having the knowledge of the existing system and some faculty of organisation. Bearing in mind this economy that results from division of labour and large existing establishments ready for rearranging, it is by no means impossible that an actual saving could be effected."1

1. Cited by the Report of the Committee on the Separation of the Judiciary from the Executive, 1947 Bombay, p. 17, para. 66.

20. Extra expenditure not excessive.-

The matter has, however, now ceased to be one of merely making a guess of the increased cost as the new system has been at work in several States. In Madras, the Committee estimated the increased cost for the whole of the province before its division into Madras and Andhra at Rs. 3,57,936 per annum.1 The information before us reveals that the cost has worked out at a lesser figure than was originally anticipated. In Orissa, which is about to introduce the system of separation, the net extra expenditure involved in bringing this scheme into effect in five out of thirteen districts is estimated at Rs. 33,455 recurring per annum and Rs. 10,000 non-recurring2.

We are justified in concluding that while, no doubt, certain extra expenditure will result from the introduction of this system, it will by no means be excessive. Wherever the scheme is introduced it might be possible, as has happened in Madras, to effect retrenchment to a certain extent on the executive side as the existing executive officers would, as a result of the separation, be freed from their judicial duties.

1. Report of the Committee on the Separation of the Judiciary from the Executive, p. 65.

2. Report of the Committee on the Separation of the Judiciary from the Executive in the State of Orissa, 1953, p. 13.

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