The bureaucracy as prosecutor and judge 

That the Jan Vishwas Act allows bureaucrats in charge of enforcing the law to also conduct an inquiry and impose the statutory penalty on a finding of wrongdoing is constitutionally suspect

Updated - August 07, 2023 08:29 am IST

Published - August 07, 2023 12:40 am IST

‘The larger issue which we must worry about is that the Republic of India is backsliding on the separation of powers’

‘The larger issue which we must worry about is that the Republic of India is backsliding on the separation of powers’ | Photo Credit: Getty Images

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.

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.

Third, the Union government started creating the role of adjudicatory officers in a number of 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 who were given powers to either confirm “attachment orders” for properties or impose penalties on businesses. The Jan Vishwas Act carries forward this specific model of creating “adjudicatory officers” within the bureaucracy to impose penalties. Of the three categories discussed, the constitutionality of tribunals such as the National Tax Tribunal and some regulators such as the CCI has been challenged before the courts over concerns of the executive encroaching upon judicial powers. The question essentially comes down to the definition of “judicial function” since the Supreme Court is very clear that a “judicial function” can be discharged only by an independent judicial authority not under control of the executive. So, is the imposition of a penalty a “judicial function”?

While there is much case law, in the context of taxation law, on whether “penalties” are civil or criminal in nature, there does not appear to be any significant judicial precedent on whether the imposition of a penalty is a “judicial function”. There is a strong case to argue that any inquiry conducting fact finding followed by application of the law to the facts and determination of punishment or compensation is in essence a judicial function. The burden then should be on the government to prove its case before an independent judge who can guarantee citizens a fair trial before imposition of any punishment. The government cannot be a prosecutor and judge in its own cause. That is the essence of ‘rule of law’. That the Jan Vishwas Act allows bureaucrats in charge of enforcing the law to also conduct an inquiry and impose the statutory penalty on a finding of wrongdoing is constitutionally suspect.

The larger issue which we must worry about is that the Republic of India is backsliding on the separation of powers because of constant efforts by the bureaucracy of the Union executive to encroach upon judicial powers with the aid of elected Ministers who are either indifferent or clueless.

Prashant Reddy T. is a lawyer  

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