The New Nation - Internet Edition

-M. Harunur Rashid

Separation. of judiciary until recently has always been a popular political slogan since 1957 when the JUKTO. FRONT as political party included this in their election manifesto and this trend continued as the major political parties of the country namely B.N.P, Awami League, Jatiyo Party and Jamat-EIslami have included this issue in their manifesto. In discharge of my official duty, I had the opportunity to go through those manifesto and found how the political will of those parties as regards separation of judiciary was reflected although those parties during the tenure of their state power did nothing to fulfill people's mandate as regards separation of judiciary. In the process of implementation of directives given by the apex court in highly talked about Masdar Hussain case the issue got momentum although that case was filed by the judicial officers where basically amongst other things, the enhancement of pay was prayed for. As part of my official duty, I have been althrough involved in the process of implementation and ill the initial stage of drafting of four set of Service Rules already framed by the government

The mater took a dramatic turn when some of the officers belonging to administrative cadre flouted Supreme Court's Judgment in an inter-ministerial meeting against whom the Supreme Court issued a suo moto contempt rule.

During the long process of disposal of contempt rule, the implementation process of court's directives was completed and as a result four set of Service Rules for administering Judicial Service and the Code of Criminal

Procedure was amended. Now these Rules and Cr.P.C as amended need to put into operation and Judicial Magistrates are to be posted from among the officers belonging the Judicial Service. It is awlays to be borne in mind that it is a composite deal and the Rules and Cr.P.C as amanded need to come into force together.

Let me now very brief1y explain the scheme of the Constitution on separation of judiciary at least for academic importance. We all know that Article 22 of our Constitution runs as follows:- "The state shall ensure the separation of the judiciary from the executive organs of the State". This provision being part of fundamental principles of State Policy is not justiceable as per the provision of Article 8(2) of the Constitution. If this is the case, then question arises how come the Suprcme Court passed directives for separation of judiciary. In answering this question, we can look at articles 115, 116 and 116A of the Constitution and article 109 too. Article 115 says the appointment to subordinate court will be made by the President in accordance with rules. Article 116 says the control and discipline of subordinate courts shall vest in the president and shall be exercised by him in consultation with the Supreme Court while article 116A of the Constitution says judicial officers to be independent -in the exercise' of their functions. For performing those duties there was a requirement of Rules.

Framing of four set of Service Rules have fulfilled that requirement and therefore, framing of four set of Service Rules can well be said implementation of requirement of Article 115,116, and 116A of the Constitution. In the twelve points directives the need of framing those Rules was stressed. The Supreme Court in the twelve points directives did not specifically say anything about the Constitutional mandal reflected in Article 22 of the Constitution. So fulfillment of requirements of Article 115, 116 and 116A of the Constitution certainly fall well within the mater enforceable by the court The magistrates not being the members of Judicial Service-exercising judicial functions and their control and superintendence lies with the High Court Division of the Supreme Court under the provision of

Article 109 of the Constitution. These are the kind of operation all issues, which were addressed by the Supreme Court in Masdar Hussain case. That does not any way mean that the Constitution has contemplated separate entity of magistrate exercising judicial functions.

To my understanding people's perception of separation of judiciary is nothing but debarring persons from exercising judicial functions who are under the control-and management of the executive organ of the State. In other words judicial functions should be performed by the judicial officers within the meaning of Article 152 of the

Constitution and if we can not ensure this, it will also some how defeat the spirit of independent and impartial Court or Tribunal as enshrined in Article 35 (3) of the Constitution.' With the commencement of new sets of Service

Rules and amendment of Cr.P.C judicial magistracy will be exercised by the judicial officers and they will work under the local control of the Sessions Judge.

As per the present scheme of the Constitution, the subordinate judiciary has two wheels, that is to say the Supreme Court and the Ministry of Law as 'appropriate authority' and these two wheels need to be moved harmoniously. Some legally educated people have already raised their voice that in the recently framed Rules the Ministry in the name of 'Appropriate Authority' was given some sort of power to control the subordinate judiciary and by enabling the judicial officers to work in. the ministry and other organisation of the government, it has actually allowed the subordinate judiciary to be tied together with the executive organ of the government Some people have opened a third front and have been trying to make a point that a separate Secretariat need to be established in the Supreme Court for administering administration of justice.

The constitution, I am afraid, do not support those proposition. Despite the fact, that the Supreme Court in the maters of control and discipline of judicial officers has only consultative role and the scope and application of which is not indefinable.

Under the present scheme, the President of the Republic is the appointing authority of the judicial officers and he exercises this power in consultation with the Supreme Court under the provision of article 116 and with the advice of the Prime Minister under the provision of article 48 (3) of the Constitution. President performs his functions as per the Rules of Business framed under the provision of article 55(-6) of the Constitution and thereby allocates his business to different ministry and transact the same with the assistance .of assigned ministry. As per the Rules of Business the President can not allocate any business to any organization other than a ministry of the government, for example the Supreme Court Secretariat notionally. Moreover there is no concept of Supreme Cuurt Secretariat in our Consutuliun. Therefore, for practical purposes at least a body is required to formulate advice of Prime Minister for the President in compliance of article 48(3) of the Constitution in the maters relating to subordinate courts. That functions for number of reason should be performed by the Ministry of Law and that should not be for obvious reason vest on Ministry of Statistics or others. In the four set of service Rules, Ministry of Law was defined as 'Appropriate Authority', and that could not be avoided unless the Constitution is amended. In our Constitution there is a diarchy in respect of maters relating to subordinate judiciary and that is the reason why an observation was given in the judgment of Masdar Hussain case that Parliament may amend the Constitution to make separation more meaningful.

Now the question of allowing the judicial officers to work in the government offices on deputation need to be resolved. The model of separation of judiciary we have almost followed is 'West Bengal model' which was also an out come of a case filed by All India, Judges Association in the like manner of Masdar Hussain Case. In the relevant rules the West Bengal Government has allowed deputation of judicial officers. The corresponding provision of Indian Rule is quoted hereunder

"Rule 19 Deputation -Any members of the Service may be deputed by the High Court to perform the duties of any post in the Central Government or the State Government or the Union Territory of Andaman and Nicober Islands or to serve in any organisation, which is wholly or partly owned and controlled by the central or the state government for a period of years or for such period as the High Court and borrowing department agree." In the Rules called the West Bengal Judicial (condition of service) Rules, 2004, deputation of senior judicial officers like District Judge was also allowed in Rule 40 in addition to the rule quoted above.

This provision is much more wider than that of ours. Some people are interpreting the judgment of Masdar Hussain case in a way that a kind of ban was put there in the judgment for judicial officers to work on deputation. But the people who have read the judgment, I hope, would agree that there is nothing except directive No-1 which says judicial.. service can not be mixed up and tied together with other executive service. Now we need to know what does it mean?

Does it restrict the provision of deputation or it has nothing to do with deputation of judicial officer.

By directive No. 1 given in the judgment of Masdar Hussain case the Supreme Court has put a restriction on the government for not amalgamating other cadre services with the judicial service in exercise of its power given in the Services (Re-Organisation) Act, 1975, the way the government in the recent past amalgamated the then Secretariat Service with the Administrative Service. There is no directive or nothing of this sort in the judgment of Masdar Hussain case against deputation of judicial officers in the government offices. The Supreme Court has approved the provision of deputation in the Rules and made it part of its order and it was of course, made in consonance with its directives given in the judgment There are two Constitutional service distinctly mentioned in the Constitution. One of which is the Defence Service as mentioned in Chapter IV of Part IV of the Constitution and, other is the Judicial

Service as mentioned in Chapter 11 of Part VI of the Constitution: The ban or restriction in one Service as regards appointment on deputation would certainly make an impact on the other. It is to be remembered that by working on deputation the members of defence service have become symbol of peace keeping process under the United Nations Mission.

Under the present constitutional scheme the role of the Ministry of Law can not be avoided in the maters relating to administration of justice and for obvious reason that ministry should be manned and staffed by the judicial officers likewise the Bar Council should be run by the lawyers and BMA should be run by the Doctors. Recently in a case decided by the High Court Division of the Supreme Court, the provision of deputation of judicial officer in the ministry of law and other government organizations have been reinforced and that decision has got binding effect as per the provision of article 111 of the Constitution.

In the recently framed Service Rules some sort of control of the government is there over the maters relating to appointment and transfer of the judicial officers and that has infact created anxiety in the minds of legal community.

I heard them saying, what is the point of having this kind of separation where government has a control over the subordinate judiciary. I do appreciate their anxiety. But so long the President is the appointing authority and so long the President has to work with the advice of the Prime Minister, this remote control can not be avoided until and unless the Constitution is amended and the Supreme Court is made the appointing authority instead, of the persons employed in the Judicial Service. Moreover our Constitution perhaps, did not contemplate a separate secretariat to provide assistance to the judiciary as a whole, the way it mandated in article 79 of the Constitution for a separate secretariat for the Parliament

It is to be understood that we work under the legal bounds of a writen Constitution and there is a in-built mechanism of harmonious working of each organ of the State. The Supreme Court as guardian of the Constitution can prevent the state functionary from exceeding their limits or over stepping by exercising its power popularly known as 'judicial review'. Supreme Court's power and function in the maters relating to subordinate court is embodied in article 116 of the Constitution and the provision of article 116 can not apply in the maters of appointment of person belongs to other than Judicial Service and the advisory jurisdiction of the Supreme Court as per the provision of article 106 can not be invoked under article 116 of the Constitution.

With the commencement of new Service Rules and amendment of Cr.P.C, magisterial powers would be classified into two groups namely judicial magistracy and preventive magistracy. Judicial magistracy relating to justice will be exercised by the judicial officers who will be working as Judge or Magistrate full time while the preventive magistracy relating to law and order situation will be exercised by the administrative officers who are not necessarily legally educated. That will I believe, bring about a positive impact in the criminal justice system and at the same time it will regain people's confidence in the justice delivery system as a whole.

So I urge the legal community not to confuse and mix up the separation of judiciary as in the Constitution with the separation of judiciary we had been dreaming for and let us make our all efforts to implement the directives of the apex court of the country in order that a long cherished goal of the people of this part of the globe can be achieved. Now the things need to be looked at are firstly; to put those four set of service rules and amendment of Cr.P.C into operation and see what qualitative change it can bring about; secondly to recruit sufficient number of officers to post them as judicial magistrate in the changed circumstances. Let us make best use of our own experience except which nothing can be more authentic.

[The author is a Joint District Judge now working in the Election Commission Secretariat on deputation. He has both national and international publication on law and parliament in his credit]