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

Debate Summary

Article 39-A 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 3 years.

The Draft Article enjoyed wide support. For the most part of colonial India, the judicial and executive wings of administration were fused – Indians felt 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 suggested that the separation principle was important in the context of a foreign government, but was not sure of its salience in an independent India. He was concerned that the Draft Article would, in practice, give the judiciary undue power leading to judicially excess. 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