The bureaucracy as prosecutor and judge  Premium

There is a backsliding on the separation of powers because of efforts by the bureaucracy to encroach upon judicial powers with the aid of elected Ministers

The controversial Jan Vishwas Act, 2022 which was recently enacted into law by Parliament, has been touted by the government as a landmark piece of legislation aimed at improving “ease of doing business” in India by either decriminalising or making “compoundable” offences across 42 legislations.

The fine print which has received little media attention is that while the legislation has mostly replaced criminal imprisonment with penalties, it has transferred the power to impose these monetary penalties from the judiciary to the bureaucracy. For example, the Jan Vishwas Act amends the Environmental (Protection) Act, 1986 and the Air (Prevention and Control of Pollution) Act, 1981 to replace imprisonment as a punishment for certain offences with penalties of up to ₹15 lakh that can be imposed by designated bureaucrats (Joint Secretaries). Under amendments to the Indian Forest Act, 1927 forest officers have the power to not just conduct an inquiry to determine the “damage done to the forest” by anybody but also order the offender to pay a hitherto uncapped “compensation” for said damage.

Given the regularity with which India Inc. complains about tax terrorism, there is surprisingly no opposition to giving the bureaucracy the power to be both prosecutor and judge while imposing penalties and ordering the payment of compensation. The larger question is whether giving the bureaucracy, rather than the courts, the power to not just adjudicate a factual dispute but also penalise or order compensation, goes against the constitutional scheme of separation of powers.

Although the Constitution does not mandate a separation of powers between the judiciary and the executive, Article 50 directs the state to achieve it in due time. Such a separation was not achieved until several years after the Constitution came into effect because the criminal magistracy was part of the executive at Independence. It took till approximately 1970, for several State legislatures to effect the separation of power at the level of the criminal magistracy through laws such as The West Bengal Separation of Judicial and Executive Functions Act, 1970 which separated the roles of the judicial and executive magistrates in the Criminal Procedure Code, 1898.

The saga of protecting judicial independence from the roving eye of the bureaucracy did not end with the separation of the criminal magistracy from the executive. Since the 1980s, the bureaucracy has tried three different routes to capture judicial power.

First, different Ministries began creating judicial tribunals to take over various judicial functions hitherto exercised by the judiciary. Most of these tribunals were created in a manner to give bureaucrats an opportunity to be appointed to the tribunals as “technical members”.

Second, the Union government began creating a new class of statutory regulators such as the Securities and Exchange Board of India, and the Competition Commission of India (CCI) which had powers to punish the private sector with punishing fines. Virtually all these regulators ended up being headed by senior bureaucrats.