GS Paper 2
Syllabus: Governance
Source: TH
Context: The recently enacted Jan Vishwas Act, 2022, aimed at easing business regulations, transfers the authority to impose penalties for offences from the judiciary to the bureaucracy. This move has raised concerns about the separation of powers, as bureaucrats become both prosecutors and judges.
What is Separation of Power?
Separation of Powers is a fundamental principle in governance where the powers of a government are divided among different branches to prevent any one branch from having unchecked authority. It ensures a system of checks and balances.
For example, in a democratic country, the legislative, executive, and judicial branches have distinct functions to prevent the concentration of power and ensure accountability.
About the act:
Issues Related to Jan Vishwas Act:
| Issues | |
| Violates Separation of Power | The legislation replaces criminal imprisonment with monetary penalties but shifts the authority to impose penalties to the bureaucracy. |
| It amends environmental and pollution control Acts to replace imprisonment with penalties, decided by designated bureaucrats | |
| A form of ‘quasi-decriminalization’: | Critics argue the Act offers a form of ‘quasi-decriminalization’, and more efforts are needed for true decriminalization. |
| Technical competence of adjudicating officers | Questions were raised about the technical competence of adjudicating officers under the Act, especially in environmental legal proceedings. |
Status of division of powers between executive and judiciary in India:
The division of powers between the judiciary and the executive is not explicitly outlined in the Constitution.
- Article 50 instructs the state to achieve this separation over time.
- Initially, the criminal magistracy was part of the executive at Independence.
- It was only around 1970 that certain State legislatures, like West Bengal, enacted laws to separate the judicial and executive functions within the criminal magistracy under the Criminal Procedure Code, 1898
The bureaucracy encroaches upon judicial power through various methods:
- Establishing Judicial Tribunals: Ministries create judicial tribunals to take over judicial functions, often appointing bureaucrats as “technical members”
- Creating Statutory Regulators: The Union government establishes regulators like SEBI and CCI with the authority to impose substantial fines on private sector entities.
- Appointing Adjudicatory Officers: The government introduces adjudicatory officers in legislation like the Prevention of Money Laundering Act, IT Act, and Food Safety Act. These officers, who are bureaucrats, possess powers to impose penalties or confirm property attachment orders.
Supreme Court Views:
- A “judicial function” should only be performed by an independent judicial authority free from executive control.
- While there is limited precedent on whether imposing penalties qualifies as a “judicial function,” processes involving fact-finding, applying the law, and determining punishment or compensation fundamentally constitute a judicial function.
Hence, it’s the government’s duty to present its case before an impartial judge to guarantee citizens a fair trial before any penalty is imposed. The government cannot serve as both prosecutor and judge in its own matter.
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