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Separation of Powers

The Madras High Court quashed two orders allowing executive magistrates to make habitual offenders execute “good behaviour” bonds as these magistrates are not judicial officers and cannot conduct trials.

By Dr Abhishek Atrey

Recently, a division bench of the Madras High Court in P Sathish vs State quashed two government orders, issued in 2013 and 2014, which allowed executive magistrates to punish by imprisonment under Section 122 (1)(b) of the CrPC. The Court quashed an uncommon legal practice under which the state police could make habitual offenders execute “good behaviour” bonds. The Court said these were violative of Articles 14, 21 and 50 of the Constitution, along with Section 6 of the Madras District Police Act on the principle of separation of powers of the judiciary and the executive.

In this 121-page judgment, the bench dealt with the practice prevailing in almost all the states authorising executive magistrates, who are not judicial officers but exercising judicial powers, to punish those who hadn’t committed any actual offence, but had merely violated bonds executed for keeping peace.

Preventive detention is an evil of criminal jurisprudence, but it is a necessary evil and is authorised by Chapter 8 of the CrPC (Sections 106 to 124). They authorise executive magistrates to punish people without their committing any offence. To understand this policy of preventive detention, it is necessary to narrate Section 106 to 124 in a nutshell.

Section 106 authorises a court of a session or a court of a magistrate, at the time of conviction, to direct the convict to execute a bond for keeping peace for a period up to three years. Section 107 authorises any executive magistrate to direct any person who has not been convicted to execute a bond for keeping peace for up to one year. This is when the magistrate is of the opinion that there is sufficient ground that such a person is likely to commit breach of peace or disturb public tranquillity. Section 108 authorises an executive magistrate to issue show cause notice to any person for executing a bond up to one year for keeping good behaviour if, in his opinion, such a person is accused of publishing or disseminating seditious or obscene matters. Section 109 authorises the magistrate to issue show cause notice to any person for executing a bond for good behaviour up to one year if he feels that such a person is concealing his presence with a view to committing a cognizable offence. Section 110 authorises an executive magistrate to issue show cause notice to any habitual offender to execute a bond for keeping good behaviour up to three years.

These powers were given to executive magistrates by amendments in the CrPC in 1980. Before that, these powers were with first class judicial magistrates.

Sections 111 to 116 prescribe the procedure to conduct an inquiry, similar to that of a trial, by the magistrates in cases under Sections 107, 108, 109 or 110. Sections 117 and 118 authorise magistrates to direct execution of the bond or to discharge the accused after conducting inquiry. Section 121 authorises the magistrate to refuse or accept surety if the surety is an unfit person. Section 122 authorises the magistrate to send any person to jail who has been directed to execute bond under Section 106 or Section 117, for the remaining period of the bond, if it is proved that he has committed breach of the bond. Section 123 authorises district magistrates, in cases where the order of detention was passed by executive magistrates and chief judicial magistrate in other cases, to discharge such a person if he may be released without hazard to the community.

The main issue before the division bench in this matter was whether an executive magistrate, who is not a judicial officer, can exercise powers to conduct trial and send people behind bars. The impugned government orders allowed police officers to exercise powers of the executive magistrate under Chapter 8 of the CrPC.

This judgment basically deals with the interpretation of words “such magistrate” used in Section 122. It is pertinent to mention that Section 20 (1) authorises the State to appoint any person as an executive officer. This Section was upheld by the Supreme Court in Suresh Sham Singh 2006, whereas in Ghulam Abbas vs State of U.P. 1982, it was held by the Supreme Court that executive magistrates have no powers to punish any person. The Law Commission of India also in its 37th report recommended overhauling of the CrPC and in its 41st report recommended to do away with the old nomenclature of magistrates viz. Executive magistrate, judicial magistrates, metropolitan magistrates, magistrates of first class and second class.

By the Amendment Act of 1980 in the CrPC, the Parliament has taken away powers under Section 108 to 110 from judicial magistrates and vested them with executive magistrates on the understanding that these powers are preventive in nature and not punitive. This is because a final order under Section 117 only involves the taking of security by executing a bond under Section 107 to 110. In other words, at the Section 117 stage, there is no interference to personal liberty as the person concerned is merely required to execute a bond either under Form 12 or Form 13 of the Second Schedule of the Code. The punitive element is only in Section 122 which deals with failure to execute a bond or breach of a bond, for which punishment is provided for imprisonment for the remaining period of the bond. 

The High Court in this judgment held that in view of Gulam Abbas, a person violating the bond under Section 107, executed pursuant to an order under Section 117, will have to be challaned before a judicial magistrate to receive punishment under Section 122 (1) (b), and executive magistrates are not authorised to pass orders of arrest and detention of a person under this Section.

The High Court observed that the theory of separation of powers has been an integral part of constitutional theory for over three centuries. The Constitution has incorporated this principle in Article 50 specifically. In the case of State of Tamil Nadu vs State of Kerala 2014, the Supreme Court clarified that the law which violates the principle of separation of powers would also be held arbitrary and violative of Article 14 of the Constitution.

Earlier, in Sukhdev Singh Dhindsa vs State of Punjab 1985, the Punjab and Haryana High Court struck down Section 4 of the Punjab Act, 1983 and in the case of Hanumant Singh vs State of MP 1996, struck down Section 21 of the Bonded Labour System (Abolition) Act, which vested similar powers to executive magistrates.

During the freedom movement, freedom fighters, including Mahatma Gandhi, were victims of executive excesses under Section 107 of the CrPC and other allied proceedings. Therefore, when the Constitution of India was drafted, the Constituent Assembly consciously decided to separate the judiciary from the executive. The driving force behind draft Article 39-A (presently Article 50) was none other than Dr BR Ambedkar.

The Madras High Court judgment came at a time when there are strong moves on the part of the government and the judiciary to encroach into each other’s powers. Time and again, political leaders, especially those who are in the government, allege that the judiciary encroached on the powers of the executive by passing several orders which even touched on policy decisions of the government. 

The collegium system of appointing judges is often criticised by the ruling party. On the other hand, the Supreme Court recently passed a judgment for taking away the absolute powers of the government to appoint the Election Commission. It entrusted the powers to appoint Election Commissions to a search committee comprising the prime minister, the Leader of the Opposition and the chief justice of India. 

We should not forget that separation of powers is part of the basic structure of the Constitution as held by the Supreme Court in a catena of judgments starting with the Kesavananda Bharati case in 1973. The view of the Supreme Court is that if the power to appoint judges is given to the executive, there will always remain an apprehension of bias in those judges in favour of the government. 

Similarly, in the present case, the reason behind the judgment is very simple—if a prosecutor or investigator is allowed to be a judge in his own case, there will always remain apprehension of bias. Therefore, the powers to investigate, prosecute, conduct a trial and grant punishment cannot be vested to the executive or the police. However, this judgment has to pass the test before the Supreme Court. 

—The writer is Advocate-On-Record, Supreme Court

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