Editorials/Opinions Analysis For UPSC 08 August 2023
- India’s Jan Vishwas Act: A Constitutional Challenge to Separation of Powers
- Lowering the Minimum Age for Elections
India’s Jan Vishwas Act: A Constitutional Challenge to Separation of Powers
The Jan Vishwas Act of 2022, just passed by Parliament and the subject of debate, is being hailed by the government as a substantial law reform that will improve India’s business climate. By decriminalising some offences or making them “compoundable” across 42 laws, the Act aims to accomplish this.
GS Paper 2 – Basic Structure of the Constitution, Government policies and interventions
The Jan Vishwas Act, which transfers the authority to enforce punishments from the judiciary to the bureaucracy, has important constitutional ramifications that should be discussed. Examine its probable effects on India’s judiciary’s independence and the separation of powers premise. (150 words)
Constitutional Implications and the Jan Vishwas Act’s Shift in Authority
- Despite being hailed by the administration as a groundbreaking legislative change, the Jan Vishwas Act’s finer points have garnered little public coverage. It is significant that the Act transfers authority to impose these financial penalties from the judiciary to the administration in addition to replacing criminal imprisonment with penalties. The Jan Vishwas Act, in particular, amends the Environmental (Protection) Act of 1986 and the Air (Prevention and Control of Pollution) Act of 1981 to replace imprisonment as a penalty for some offences with fines of up to 15 lakh rupees that can be imposed by designated bureaucrats, particularly Joint Secretaries. Similar to this, the Indian Forest Act, 1927 was amended to provide forest officials the power to conduct investigations to determine the level of “damage done to the forest” and to impose fines for violators who fail to pay previously uncapped “compensation” for the harm.
- Given its frequent complaints about tax terrorism, India Inc.’s surprising lack of opposition to giving the bureaucracy the ability to act as prosecutor and judge, while also issuing fines and ordering reparations, raises the larger question of whether this change in power is in violation of the constitution’s system of separation of powers.
Background Information on the Powers-Separation Principle:
The state is required by Article 50 of the Indian Constitution to work towards creating a strong separation of powers between the judiciary and the executive, even if this separation is not expressly prescribed in the constitution. The criminal magistrate was initially a member of the executive at the time of Independence, therefore this separation was not completed until several years after the Constitution went into effect. The West Bengal Separation of Judicial and Executive Functions Act, 1970, which effectively defined the roles of judicial and executive magistrates in the Criminal Procedure Code, 1898, helped achieve the separation of powers at the level of the criminal magistratia around 1970.
Challenges to Judicial Independence:
Despite the executive branch’s separation from the criminal justice system, efforts to protect judicial independence from excessive bureaucratic meddling continued. The bureaucracy has attempted a number of approaches to influence judicial power since the 1980s:
- Establishment of Judicial Tribunals: different Ministries started the process of creating judicial tribunals to take over the different judicial duties that the judiciary had previously performed. The purpose of many of these tribunals was to give bureaucrats the chance to serve as “technical members,” thereby blurring the distinction between executive and judicial duties.
- Establishment of Statutory Regulators: The Union government started the process of establishing a new class of statutory regulators with the authority to impose significant fines on the private sector, including the Securities and Exchange Board of India and the Competition Commission of India (CCI). Notably, several of these regulators eventually had senior bureaucrats leading them, which raised questions about possible executive overreach into judicial proceedings.
- Introduction of Adjudicatory Officers: The Prevention of Money Laundering Act of 2002, the Information Technology Act of 2001, and the Food Safety and Standards Act of 2006 are only a few of the laws through which the Union government established the job of adjudicatory officers. These adjudicatory officials, who were mainly bureaucrats, were given the authority to sanction companies or confirm “attachment orders” for properties. By establishing “adjudicatory officers” within the bureaucracy who have the power to inflict sanctions, the Jan Vishwas Act carries on this trend.
The Jan Vishwas Act’s constitutionality
- Given that the Jan Vishwas Act gives officials the authority to impose sanctions and the associated problems about the separation of powers, its constitutional legality is called into doubt. The Act grants selected officials, such as Joint Secretaries, the authority to substitute fines of up to 15 lakh for certain offences in place of imprisonment, and it gives forest officers the jurisdiction to conduct investigations and impose uncapped compensation for damage to forests. The question of whether imposing a punishment counts as a “judicial function” lies at the heart of the argument.
- There is a lot of case law on whether punishments are categorised as civil or criminal in character, but little legal precedent on whether imposing a punishment counts as a “judicial function.” Any investigation that requires gathering evidence, applying the law to the situation, and deciding on a punishment or settlement may be said to embody a judicial function. Therefore, in order to guarantee a fair trial and the administration of any punishment, it should be the government’s responsibility to establish its case before an impartial court. It is commonly known that the government cannot serve as both a judge and a jury in its own case since doing so would violate the fundamental tenets of the rule of law.
The Jan Vishwas Act has generated serious questions about the separation of powers entrenched in the Indian Constitution, notwithstanding its goal of making conducting business in India easier. The Act undermines the fundamental idea of an independent judiciary and the cornerstones of the rule of law by giving administrators the power to issue fines and awards. By guaranteeing the independence of the judiciary, defending citizen rights, and avoiding the encroachment of executive powers on judicial matters, India must uphold the core of its democratic system and maintain the purity of its Constitution. Elected authorities must be on the lookout for bureaucratic attempts to overstep judicial authority and act in a way that upholds the democratic and constitutional ideals of the country. Only then will India be able to uphold the revered ideal of the separation of powers while continuing down the path of development and justice.
Lowering the Minimum Age for Elections
The minimum age requirement for voting in Assembly elections has been proposed to be lowered from 25 to 18 years old by a group within the Parliament.
GS Paper 2 – Polity – Election Process
Examine the benefits and drawbacks of lowering the age requirement for running in elections from 25 to 18 years old as suggested by a legislative commission. Examine the Election Commission’s viewpoint on the situation and its worries over potential repercussions. (150 Words)
The 1951 RPA, or Representation of People Act,
The Representation of the People Act (RPA), which was passed in 1951, contains a number of significant provisions pertaining to the conduct of elections and by-elections, the establishment of administrative machinery for elections, the registration of political parties, qualifications and disqualifications for membership in the Houses, provisions to combat corrupt practises and other offences, and procedures for resolving questions and disputes arising from elections.
According to the RPA, 1951, the following requirements must be met in order to be eligible to run for office in India:
1. The person must be a registered voter in the relevant constituency.
2. The candidate must belong to the designated group in order to run for a seat in a state or a union territory that is designated for one of the Scheduled Castes or Scheduled Tribes.
3. A candidate must be 25 years old in order to run for MLA or MP (Lok Sabha).
4. The minimum age requirement to run for office is 21 years old at the panchayat and municipal levels.
Benefits of Lowering the Minimum Age to Run for Office:
- Enabling Active Engagement of Young People in the Political Process: Reducing the minimum age encourages young people to actively participate in politics, bringing new and creative viewpoints to discussions on public policy. For instance, young leaders like Pierre-Luc Dusseault were elected to the House of Commons at a young age in nations like Canada, where the candidature age is 18.
- Increased Political Participation and Awareness: The lower age limit supports and encourages younger people to become more politically active and conscious, which results in a more informed, involved, and empowered populace. The success of youth-led movements, like “March for Our Lives” in the US, starkly demonstrates the activity and significant political engagement of young people.
- Promoting Diversity in Leadership and Representation: By allowing younger candidates, the parliamentary system is given a boost of vitality, dynamism, and inclusivity. This diversity will come from a range of age groups, ethnicities, and experiences.
- Addressing Contemporary Challenges with Fresh Perspectives: Young candidates may be able to offer insightful opinions on contemporary concerns like technology, climate change, and social justice, as indicated by surveys that reveal significant political awareness and knowledge among young people around the world.
Negative effects of lowering the minimum age to run for office:
- Insufficient Experience and Maturity: One disadvantage of allowing younger individuals to run for office is that they might not have the necessary maturity and experience for efficient decision-making.
- Limited awareness of Governance and Policy: Young candidates may have a limited awareness of the nuances of governance and public policy due to their comparatively limited exposure and life experiences.
- Enhanced Susceptibility to External Influence: Young candidates who have less exposure to political dynamics may be more open to outside pressure and manipulation, which could affect their capacity for making their own, unbiased decisions.
- Possibility of Ineffective Representation: Reducing the age requirement may encourage ill-prepared individuals to run for office, increasing the likelihood of ineffective representation and a failure to adequately address complicated societal issues.
What view does the Election Commission hold?
The Election Commission had a different take on the situation and expressed opposition to the proposal because they thought that people under the age of 18 could lack the maturity and experience needed to handle such weighty duties.
Others’ Ideas The Committee talked about –
- The idea of a consolidated electoral roll for various elections was one of the other ideas the committee debated. Although care was encouraged, it was emphasised that federalism ideals must be upheld. Currently, some states use the electoral rolls maintained by the Election Commission, while others do not. The federal government and ECI’s suggestion to implement a uniform electoral roll, however, is not covered by Article 325 as it stands. Concerns were expressed by the committee over the possible effects of such a single roll on state authority as set forth in Chapters IX and IX A of the constitution.
- Aadhaar and voter identification cards were also discussed, and the committee highlighted concerns over tying non-citizens’ Aadhaar to their voter identification cards. They suggested creating legal guidelines to make sure that people who are not citizens yet have Aadhaar are not listed on election rolls.
- The committee also asked political parties for their opinions on the Election Commission’s proposal for remote voting, which would make it easier for internal migrants to participate in the electoral process.
The committee provided important suggestions about fabricated statements made during nominations. They proposed a change to the law that would increase the punishment for filing a false affidavit from the existing six months to a maximum of two years, depending on the gravity of the offence. These recommendations are in line with the rules outlined in Section 125A of the Representation of People Act of 1951, which addresses the consequences of giving inaccurate information during the electoral process.