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.
