The bureaucracy as prosecutor and judge
Context:
The Jan Vishwas Act, 2022 – With its aim of streamlining “ease of doing business,” seeks to metamorphose erstwhile criminal sanctions into financial penalties or “compoundable” offenses.
Relevance:
GS – 02, GS – 03 (Government Policies & Interventions)
Prelims:
- Ease of doing business
- Jan Vishwas Bill
- Rule of Law
- Separation of Powers
Mains Question:
- Analyze the historical evolution of separation of powers in India and elucidate the potential constitutional challenges posed by conferring adjudicatory authority upon the bureaucracy. (150 words)
The Jan Vishwas (Amendment of Provisions) Bill, 2023
- The Jan Vishwas (Amendment of Provisions) Bill, 2023 seeks to introduce modifications to existing legislation, covering a broad spectrum of domains such as environment, agriculture, media, industry, trade, information technology, copyright, motor vehicles, cinematography, and food safety.
The Bill aims to amend 183 provisions across 42 Central Acts administered by 19 Ministries/Departments.
- The Bill’s central elements involve the elimination of imprisonment clauses and fines in certain provisions, replaced by penalties. These penalties will be determined by appointed adjudicating officers within the relevant Ministries/Departments.
Dimensions of the Article:
- Understanding the Complexity
- The Dilemma of the Arbiter’s
- Governing the Separation
- Resisting the Bureaucratic Incursion
- The Regulators and the Adjudicatory backing
- The concept of Penalties
- Eroding Boundaries: The Bureaucratic puzzle
Understanding the Complexity:
- The Jan Vishwas Act moves the authority of the judiciary and empowers designated bureaucrats, Joint Secretaries, to impose penalties as high as ₹15 lakh.
- This shift also impacts environmental jurisprudence, as the Environmental (Protection) Act, 1986, and the Air (Prevention and Control of Pollution) Act, 1981, see penalties replace imprisonment.
The Dilemma of the Arbiter’s:
- A fundamental question arises: Does this fiscal retribution shift breach the separation of powers, transcending immediate policy discussions?
- Historical resonance adds weight to the query, as the constitutional compass leans toward compartmentalized power dynamics despite not being dictatorial.
Governing the Separation:
- In constitutional history, the gradual separation of powers emerges.
- The Indian Constitution includes a directive in Article 50, encouraging this demarcation.
- Over time, actions like The West Bengal Separation of Judicial and Executive Functions Act, 1970, deliberately separate criminal magistracy from executive control.
Resisting the Bureaucratic Incursion:
- Amid institutional dynamics, the judiciary faces encroachment from the bureaucratic realm.
- The creation of judicial tribunals handled by ministries strategically empowers bureaucrats, blurring the line between bureaucracy and judiciary.
The Regulators and the Adjudicatory backing:
- Statutory regulators gain authority to fine the private sector, led by senior bureaucrats. This intertwining of bureaucracy and judiciary creates a harmonious yet conflicting regulatory landscape.
- Adjudicatory officers, bureaucrats in judicial roles, navigate legislative penalties. Whether imposing penalties qualifies as a “judicial function” raises debates about the essence of the “rule of law” and separation of powers.
The concept of Penalties:
- The classification of penalties as civil or criminal remains an unexplored legal challenge.
- The concept of a penalty as a “judicial function” lacks clarity in precedent, awaiting resolution.
Eroding Boundaries: The Bureaucratic puzzle
- Apprehensions arise about erosion of constitutional boundaries due to a paradoxical dance between bureaucracy and elected custodians.
- The Republic’s trajectory oscillates between convergence and separation, highlighting a larger narrative of erosion.
Way Forward:
- With the idea of pursuit of constitutional alignment, a delicate balance needs to be struck between bureaucratic prerogatives and the sanctity of judicial function.
- Under jurisprudential contemplation, there is a necessity to construct a coherent path that allows the interplay of dynamics to converge into a harmonious resonance.
