From 1st November, the much anticipated separation of the lower judiciary from the executive took place amidst a festive mode. Since the independence of the Indian sub-continent, the total separation of the judiciary remained an important but unresolved issue. But how does it effect the ordinary citizen? How would they benefit from it?
Before 1st November 2007, appointment , posting, promotion etc of the magistrates were carried out by the Government. They used to be government employees in every sense of it. Most of the magistrates had dual role as an executive officer of the government and a judicial officer. Not only it hindered both kinds of their work, it used to put them under immense controversy. Allegation of government influence into judicial matters were widespread. In 1999, the Supreme Court in it’s historic judgment in the Masder Hossain Case delivered a 12 point directive to separate the lower judiciary from the executive branch. After 8 long years and three governments, the effort finally came to fruition.
Whereas before the magistrates were appointed through the Public Service Commission (PSC), now the judicial magistrates will be appointed through the newly established Judicial Service Commission. Four separate rules have been promulgated to establish the new framework. The Code of Criminal Procedure has been amended to reflect the new changes. There are now two kinds of magistrates – executive and judicial. The judicial magistrates will be under the control of the Supreme Court and the Ministry of Law will act as a secretariat. No doubt a separate secretariat for the new framework would have ensured better administration and remove remaining doubts about executive involvement .
What it means now is that the judicial magistrates are now full time judges. They are no longer lay magistrates. They would be trying cases full time. They will no longer have to worry about upsetting the government, the ruling party or sitting MPs. Nor would they be required to leave their courts to go somewhere else to carry out executive orders. It is expected that disposal of trials will be speed up by the new system once sufficient number of judicial magistrates are appointed.
The executive magistrates will no longer preside over trials but will still have some judicial and quasi-judicial powers required to do their job, specially those required for maintaining peace and order.
There is no doubt that this is a momentous step for the whole justice system. However, utmost diligence and caution must be exercised to ensure that the new system delivers in accordance with the hopes of the people. The judiciary must feel independent and separate from the executive branch in all respect and act accordingly. Only then the hope for a truly independent judiciary will be fulfilled.