Date : 07/08/2023

Relevance – GS Paper 2 – Basic Structure of the Constitution, Government policies and interventions

Keywords – Jan Vishwas Act, Environmental (Protection) Act, 1986, Principle of Separation of Power, Judicial Independence

Context –

The Jan Vishwas Act of 2022, which has stirred controversy since its recent passage in Parliament, is being heralded by the government as a significant legal reform aimed at enhancing the business environment in India. The Act seeks to achieve this by either decriminalizing certain offenses or rendering them "compoundable" across 42 legislations.

The Jan Vishwas Act: Constitutional Implications and Shift in Authority

Despite being touted as a landmark legal reform by the government, the finer details of the Jan Vishwas Act have received minimal media attention. It is noteworthy that the Act not only replaces criminal imprisonment with penalties but also shifts the power to impose these monetary penalties from the judiciary to the bureaucracy. In particular, the Jan Vishwas Act amends the Environmental (Protection) Act, 1986, and the Air (Prevention and Control of Pollution) Act, 1981, to substitute imprisonment as a punishment for certain offenses with penalties of up to ₹15 lakh that can be imposed by designated bureaucrats, notably Joint Secretaries. Similarly, amendments to the Indian Forest Act, 1927 grant forest officers the authority to conduct inquiries to ascertain the extent of "damage done to the forest" and to order offenders to pay hitherto uncapped "compensation" for the said damage.

The surprising lack of opposition from India Inc., despite its frequent complaints about tax terrorism, to granting the bureaucracy the power to act as both prosecutor and judge, while imposing penalties and ordering compensation, raises the larger question of whether this shift in authority contravenes the constitutional scheme of separation of powers.

Background on the Principle of Separation of Powers:

Although the Indian Constitution does not explicitly prescribe a strict separation of powers between the judiciary and the executive, Article 50 instructs the state to work towards achieving this separation in due time. However, such a separation was not accomplished until several years after the Constitution came into effect, primarily because the criminal magistracy was originally part of the executive at the time of Independence. The separation of power at the level of the criminal magistracy was eventually achieved around 1970, through the enactment of laws such as The West Bengal Separation of Judicial and Executive Functions Act, 1970, which effectively delineated the roles of judicial and executive magistrates in the Criminal Procedure Code, 1898.

Challenges to Judicial Independence:

The quest to safeguard judicial independence from undue interference by the bureaucracy persisted even after the separation of the criminal magistracy from the executive. Starting from the 1980s, the bureaucracy has pursued various avenues to exert influence over judicial power:

1. Creation of Judicial Tribunals: Different Ministries began establishing judicial tribunals to take over various judicial functions previously exercised by the judiciary. Many of these tribunals were devised to provide bureaucrats with the opportunity to be appointed as "technical members," further eroding the line between executive and judicial functions.
2. Establishment of Statutory Regulators: The Union government embarked on creating a new class of statutory regulators, such as the Securities and Exchange Board of India and the Competition Commission of India (CCI), equipped with powers to levy significant fines on the private sector. Notably, many of these regulators ended up being headed by senior bureaucrats, thereby raising concerns about the potential encroachment of executive powers into judicial matters.
3. Introduction of Adjudicatory Officers: The Union government introduced the role of adjudicatory officers in several legislations, including the Prevention of Money Laundering Act, 2002, the Information Technology Act, 2001, and the Food Safety and Standards Act, 2006. These adjudicatory officers, typically bureaucrats, were granted powers to either confirm "attachment orders" for properties or impose penalties on businesses. The Jan Vishwas Act continues this trend by creating "adjudicatory officers" within the bureaucracy with the authority to impose penalties.

The Constitutionality of the Jan Vishwas Act:

The constitutional validity of the Jan Vishwas Act comes into question, given its provision to empower bureaucrats to impose penalties and the related concerns about the separation of powers. The Act confers authority on designated bureaucrats, such as Joint Secretaries, to replace imprisonment with penalties of up to ₹15 lakh for certain offenses, and forest officers gain the power to conduct inquiries and impose uncapped compensation for damage to forests. Central to the debate is whether the imposition of a penalty constitutes a "judicial function."

While ample case law exists on whether penalties are considered civil or criminal in nature, there is limited judicial precedent on whether the imposition of a penalty qualifies as a "judicial function." Arguably, any inquiry that entails fact-finding, applying the law to the facts, and determining punishment or compensation embodies a judicial function. As such, the burden should fall on the government to prove its case before an independent judge to ensure a fair trial before the imposition of any punishment. It is well-established that the government cannot act as both prosecutor and judge in its own cause, as that undermines the fundamental principles of the rule of law.

Conclusion:

The Jan Vishwas Act, despite its objective of facilitating the ease of doing business in India, has raised significant concerns regarding the separation of powers enshrined in the Indian Constitution. By granting bureaucrats the authority to impose penalties and compensation, the Act challenges the fundamental principle of an independent judiciary and the core tenets of the rule of law. India must uphold the essence of its democratic system and preserve the sanctity of its Constitution by ensuring the independence of the judiciary, safeguarding the rights of citizens, and preventing the encroachment of executive powers on judicial matters. In addressing the broader issue of bureaucratic efforts to encroach upon judicial powers, elected officials must remain vigilant and act in the best interest of the nation's democratic principles and constitutional values. Only then can India continue on the path of progress and justice while upholding the cherished principle of the separation of powers.

Source – The Hindu