Separation of judiciary from executive

Article 50, Constitution of India 1950

The State shall take steps to separate the judiciary from the executive in the public services of the State.

Draft Article 39-A (Article 50) was not part of the Draft Constitution 1948, it was introduced in the Constituent Assembly and discussed on 24 and 25 November 1948. It directed the State to separate the judiciary and executive in the public services within three years.

The Draft Article enjoyed wide support in the Assembly. For the most part of colonial India, the judicial and executive wings of administration were fused – Indians had experience of how this compromised judicial independence. Assembly members recounted that the separation of the executive and judiciary was a long-standing demand of the freedom movement. This demand was made at the very first meeting of the Congress in 1885 and thereafter in a range of Congress resolutions.

One member was reluctant to support the Article. He was concerned that the Draft Article would, in practice, give the judiciary undue power leading to judicially excess. There was no need to lay down a constitutional mandate to achieve this, when it could be affected by different state governments with the mandate of the people. In response, another member argued that judicial independence was far more critical with the ‘advent of democracy and freedom’.

The Draft Article’s three-year time limit did not go down well with the Assembly. Members felt that the Directive Principles of State policy must only mention broad principles and not go into the details of implementation like time-limits. An amendment was then moved to remove the three-year time limit.

At the end of the debate, the Assembly adopted the Draft Article with the amendment on 25 November 1948.