The Bureaucracy as Prosecutor and Judge

Why in News?

• The Jan Vishwas Bill has been pushed by the government as a landmark piece of legislation aimed at improving “ease of doing business” in India.
• The larger question about the law is whether transferring the power from judiciary to bureaucracy to not just adjudicate a factual dispute but also penalise or order compensation, goes against the constitutional scheme of separation of powers.

 

Jan Vishwas (Amendment of Provisions) Bill, 2023

• The bill seeks to redefine the regulatory landscape of the country with decriminalisation of minor offences under 42 Acts to reduce compliance burden and promote ease of living and doing business in the country.
• It was tabled in Parliament by the Union Ministry of Commerce and Industrylast year and later referred to a Joint Parliamentary Committee (JPC) for review.
• Most recommendations of the JPC have been approved by the Union Cabinet, clearing the way for its passing.

 

Important Features of the Bill

• Decriminalising of 180 offences across 42 laws governing environment, agriculture, media, industry and trade, publication, etc.
• It seeks to completely remove or replace imprisonment clauses with monetary fines, to provide a boost to the business ecosystem and improve the well-being of the public.
• The Bill also proposes compounding of offences in some provisions.
• The Bill removes all offences and penalties under the Indian Post Office Act, 1898.
• Changes in grievance redressal mechanismsand the appointment of one or more Adjudicating Officers for determining penalties.
• A periodic revision of fines and penalties(an increase of 10% of the minimum amount every 3 years) for various offences in the specified Acts. 

 

Key Laws Covered in the Bill

• The Indian Forest Act, 1927
• The Air (Prevention and Control of Pollution) Act, 1981 
• The Information Technology Act, 2000
• The Environment (Protection) Act, 1986
• The Copyright Act, 1957
• The Motor Vehicles Act, 1988
• The Railways Act, 1989
• The Cinematograph Act, 1952
• The Agricultural Produce (Grading & Marking) Act, 1937
• The Food Safety and Standards Act, 2006
• The High Denomination Bank Notes (Demonetisation) Act, 1978, etc.

 

What was the Need for the Bill?

• MSMEs are the backbone of the Indian economy and contribute significantly to the GDP.
• For these enterprises to make a shift to the formal sector and generate jobs and income, there must be effective and efficient business regulations in place that eliminate unnecessary red tape.
• Currently, there are 1,536 laws which translate into around 70,000 compliances that govern doing business in India.
• A 2022 report by the ORF on imprisonment clauses in business laws revealed that among the 69,233 unique compliances that regulate business in India, 26,134 have imprisonment clauses as a penalty for non-compliance.
• These excessive compliances have proved onerous for business enterprises, especially MSMEs, creating barriers to the smooth flow of ideas and the creation of jobs, wealth, and GDP.
• Moreover, the lengthy processing times for the needed approvals can escalate costs and dampen the entrepreneurial spirit.  

 

Significance of the Bill

• Reducing compliance burden gives impetus to business process reengineering and improves ease of living of people.
• It would accelerate investment decisionsdue to smoother processes and attracting more investment.
• The Bill is also aimed at reducing judicial burden.As per the National Judicial Data Grid, out of a total of 4.4 crore pending cases, 3.3 crore cases are criminal proceedings.
• Settlement of many issues, by compounding method, adjudication, and administrative mechanism, without involving courts, will save time, energy, and resources.
• To summarise, the Bill seeks to bolster ‘trust-based governance.’

 

Major Issue of the Bill: Breaching Separation of Power Between Judiciary and Bureaucracy

• 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.
• Since the 1980s, the bureaucracy has tried three different routes to capture judicial power:
  • Different Ministries began creating judicial tribunals to take over various judicial functions 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”.
  • The Union government began creating a new class of statutory regulators such as the SEBI and the CCI which had powers to punish the private sector with punishing fines. Virtually all these regulators ended up being headed by senior bureaucrats.
  • The Union government started creating the role of adjudicatory officers in several legislations such as the Prevention of Money Laundering Act 2002. These adjudicatory officers/bureaucrats can attach properties or impose penalties on businesses. 
• Of the three categories, 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.

 

How Does the Jan Vishwas Law Challenge the Concept of a Separation of Power?

• It carries forward the specific model of creating “adjudicatory officers” within the bureaucracy to impose penalties.
• 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 law amends the Environmental (Protection) Act 1986 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.
• 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.

 

Is the Imposition of a Penalty a “Judicial Function”?

• 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.”
• However, there is a strong case to argue that any inquiry conducting fact finding followed by application of the law and determination of punishment or compensation is in essence a judicial function.
• Therefore, the burden 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. 

 

Conclusion

• While, the Jan Vishwas Bill will address technical and procedural defaults without imposing severe penalties and establish a balanced approach between the severity of offence and prescribed punishment, it allows bureaucracy to discharge the duties of judiciary.
• The government should not be a prosecutor and judge in its own cause. That is the essence of ‘rule of law’.

 

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Q1) What are some concerns associated with the Jan Vishwas Act?

The Jan Vishwas Bill replaces imprisonment with fines or penalties, which is not enough for decriminalisation. Experts argue that the Bill represents a 'quasi-decriminalization', and more efforts are needed to institutionalise true decriminalisation. Concerns were raised about the appointment of adjudicating officers under the Air (Prevention and Control of Pollution) Act and the Environment (Protection) Act, 1986, questioning their technical competence for such legal proceedings.

 

Q2) What changes does the Jan Vishwas bill make to the drug law?

The Jan Vishwas Bill will make two changes to the Drugs and Cosmetics Act, 1940. The first amendment, which is not contentious, will do away with imprisonment under section 30 (2) of the current law for companies repeatedly using government analysis or test reports for promoting their products. The second amendment – and this is the contentious one – will change section 32B (1) of the existing law to allow “compounding” of offences under section 27 (d). Compounding is a legal provision that allows one to pay a fine instead of undergoing criminal proceedings.

 

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Source: The Hindu