BY K. B. S.

The Premier of Madras has been subjected to much adverse criticism because of the position taken up by him in regard to the separation of the judicial and executive functions in the Provinces. I propose, in this short note, to examine the question from his point of view. It is clear that he is not opposed to such separation on principle. He is only against its being adopted in the Provinces as they are at present constituted.

Everybody knows that the Indian National Congress has, for years, insisted on such severance. But such insistence was obviously not out of an abstract love for purity of constitutional principle. The fact was that the executive at the time was completely irresponsible and unresponsive to public opinion. The executive was then composed of hard-boiled bureaucrats, whose only care was the efficient running of the administrative machine in accordance with their own wishes, tastes and interests. Nor was the position of the judiciary less objectionable from the standpoint of democratic constitutional principle. The people were not responsible for the constitution of the highest courts in the land. Appointments to the highest judicial offices were not made by the representatives of the people. Neither the jurisdiction of the High Courts nor the procedure they had to follow was amenable to popular control of any kind. Even the laws they had to administer could not be annulled nor modified by a democratic legislature. But, in spite of all this, the duties of a judiciary and the manner in which the duties are discharged are such that the large majority of its members, at least among those holding the highest offices, could not unreasonably, be expected, because of the limitations imposed upon them by the very quality of their functions, if for no other reason, to act with less bias, less high-handedness, and less self-interest, as well as with greater responsiveness to public opinion. But then, they must be exempt from executive control and immune from executive influence. Otherwise, instead of acting as a check upon executive arbitrariness, they would themselves be the instruments of such tyranny. And events frequently happened all over India which made the people feel the mailed fist of the executive through the velvet glove of the judiciary. It was therefore felt that, however imperfectly constituted and manned the highest tribunals themselves were, they should be free from bureaucratic wire-pulling. The Congress was asking that a tyrannical prosecutor should not also be the judge.

Let us now see what the present facts are. The position of the provincial executive, vis-a-vis the people, has undergone a thorough change but that of the judiciary has remained substantially what it was. Every one of the statements made above, in describing the position of the highest courts in the land before the present Government of India Act was passed, is substantially applicable to their present position. But, on the other hand, the executive is composed of elected representatives of an electorate constituted on the basis of a fairly wide franchise. They are removable at the instance of a popular legislature, and thus subject to the control of the people. Of course, the High Courts are not in any way amenable to executive influence. If the executive should abandon its control of the subordinate judiciary (which is all it can now control) it would be relegating them to the complete control of a body, judicial no doubt, but which is not constituted by the people, the members of which are not necessarily appointed by a Cabinet subject to popular control, nor even in theory removable by the legislature, and the jurisdiction of which cannot altogether be altered by popular vote. Even the procedure it has to follow or the laws it has to administer are not completely subject to provincial control. The position of the judiciary in the Provinces is, from a constitutional point of view, unique, anomalous and highly objectionable. Where the judiciary is not, in constitutional theory, subject to ultimate legislative control, is it undesirable that the executive which is the creature of the legislature, should seek to retain whatever power it has over the judiciary?

Apart from the above considerations, one must remember that in most democratic constitutions, there is a check upon the imperfections of a judiciary in the shape of the jury system of trial in at least important criminal cases and many civil actions. In the absence of such a check why should a popular executive and, through it, the people themselves, give up their limited control over the subordinate judiciary? Even as it is, the High Court has under the Act extensive powers of superintendence and control over the subordinate courts. The people would then be surrendering something valuable which the new Act has given them. In theory, and, if the electorate is sensible, in practice, we need have no dread of the executive any longer. There is no scope for the application of pure and strictly theoretical constitutional principles to the relations inter se of a judiciary and an executive such as we now have. And these, I think, are some of the valid reasons that underlie the Madras Premier’s attitude upon this matter.

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