The bureaucracy as prosecutor and judge

Source– The post is based on the article “The bureaucracy as prosecutor and judge” published in “The Hindu” on 7th August 2023.

Syllabus: GS2- Polity

Relevance: Issues related to separation of power

News– The Jan Vishwas Act, 2022 was recently enacted into law by Parliament. It has decriminalised or made “compoundable” offences across 42 legislations.

What are the issues related to Jan Vishwas Act, 2022?

Legislation has largely replaced criminal imprisonment with monetary penalties. But it has also shifted the authority to impose these penalties from the judiciary to the bureaucracy.

For instance, the Jan Vishwas Act amends the Environmental (Protection) Act, 1986, and the Air (Prevention and Control of Pollution) Act, 1981, to substitute imprisonment with penalties, up to ₹15 lakh. Penalties can be imposed by designated bureaucrats for specific offences.

The crucial question is related to granting bureaucracy authority to decide about disputes and impose penalties. It is against the constitutional principle of the separation of powers.

What is the status of division of powers between executive and judiciary?

The Constitution does not explicitly provide for division of powers between the judiciary and the executive. Article 50 only directs the state to achieve such a separation in due course.

However, this separation was not accomplished until several years after the Constitution came into effect. The criminal magistracy was included within the executive branch at the time of Independence.

In 1970, some State legislatures enacted laws like The West Bengal Separation of Judicial and Executive Functions Act, 1970. It led to establishment of a separation of powers at the level of the criminal magistracy under the Criminal Procedure Code, 1898.

What are various methods used by bureaucracy to encroach upon judicial power?

Several Ministries have established judicial tribunals to assume the judicial responsibilities that were previously handled by the judiciary. Many of these tribunals were set up in a way that allowed bureaucrats to be appointed as “technical members.”

The Union government has created a fresh category of statutory regulators, such as the Securities and Exchange Board of India and the Competition Commission of India. These regulators were granted authority to impose hefty fines on the private sector.

The Union government has created the role of adjudicatory officers in several legislations such as the Prevention of Money Laundering Act, 2002, the Information Technology Act, 2001 and the Food Safety and Standards Act, 2006.

These adjudicatory officers were always bureaucrats. They were given powers to either confirm “attachment orders” for properties or impose penalties on businesses.

What Indian law says about “judicial function”?

The Supreme Court has made it explicitly clear that a “judicial function” must only be carried out by an independent judicial authority that is not under the control of the executive.

As of now, there seems to be limited legal precedent on whether the imposition of a penalty qualifies as a “judicial function.”

However, any process involving fact-finding, application of the law to those facts, and the determination of punishment or compensation fundamentally constitutes a judicial function.

Therefore, the responsibility should lie with the government to substantiate its case before an impartial judge to ensure that citizens receive a fair trial before any penalty is imposed. The government cannot simultaneously act as a prosecutor and a judge in its own case.