Editorial
Judicial power debate
Fundamental need is to place lower judiciary firmly under SC control
Government appears to be considering retention of some judicial powers in the hands of executive magistrates, albeit with the consultation of the Supreme Court. It could be ensured through an administrative decree for the time being or involve another amendment to the CrPC. To our mind, it is reopening of the issue that ought to have been settled with the amendment of the CrPC carried out earlier on. This should have delineated the powers and responsibilities between officers of executive cadre who acted as magistrates and the judicial magistrates. The amendment was thought to have cleared the course for the separation of the judiciary from the executive to commence on November 1.
Political governments dragged their feet for 8-9 years on the vital agenda of separation of judiciary from the executive and it fell on the non-political interim government much to the formers' shame to try and deliver on it. After nine months of earnest efforts of the present government we come to realise that independence of judiciary is a process, and not an event that has taken up much of our nation's time to brook any further delay.
As administrators, executive magistrates wielded wide range of powers: they could hold mobile court and summary trial taking instant cognizance of an offence, depute magistrate at electricity and Desa offices, impose section 144 to maintain law and order, issue instructions to law enforcement authorities and give punishment to an offender. What of these judicial powers would be retained by them even for the transition period till the emergence of full complement of judicial officers cadres have to be decided by the highest court.
Our experience has been that the process of law was often subverted by a political government or its executive authority dictating to the magistrates who should be given bail and who not. If the judges can act within the bounds of law without interference from any quarters that constitutes independence of judiciary. The fundamental issue here is placing the entire lower judiciary under the control of the Supreme Court. As far as we understand for the time being things would be processed through the law ministry which is part of the executive government. For an effective separation of judiciary from the executive it is of pivotal importance that the Supreme Court has an independent and self-contained secretariat. Towards providing that, we should move expeditiously.
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