Madras HC strikes down two orders issued by Jayalalithaa govt

The government orders numbered 659 and 181 were passed in September 2013 and February 2014 respectively

The Madras high court on Monday declared two government orders (GO) issued in 2013 and 2014 during the late J Jayalalithaa’s regime as “unconstitutional”. The GOs had empowered the deputy commissioners of police to exercise the powers of the executive magistrates to obtain bonds of good behaviour from habitual offenders.

By applying the test of “a likelihood of bias” the bench concluded that the vesting of powers under Section 107 to 110 under the CrPc with the deputy commissioner of police are “wholly arbitrary and unfair”. (HT Photo)

“In fact, the GO’s do not contain any reason at all but merely say that this was done because the Chief Minister of the day wanted it to be so,” a bench comprising justice N Satish Kumar and justice N Anand Venkatesh said. “Preventive detention is a necessary evil but an evil nonetheless.”

By applying the test of “a likelihood of bias” the bench concluded that the vesting of powers under Section 107 to 110 under the CrPc with the deputy commissioner of police are “wholly arbitrary and unfair”. The court observed that these had given the police “the power to play the investigator, prosecutor and the judge and send people to jail” and described it as a “textbook case of violation of separation of powers”.

The GOs numbered 659 and 181 were passed in September 2013 and February 2014 respectively. The court said that it ultra vires the provisions of Articles 14, 21 and 50 of the Constitution of India and the provision to Section 6 of the Madras District Police Act. Consequently, the status quo which prevailed prior to the issuance of the GOs would be restored.

The justices began the exhaustive order with a short narration. “Once upon a time, under the canopy of justice sat the judicial magistrate who exercised preventive jurisdiction under the Code of Criminal Procedure to ensure that law and order prevailed in the areas under his jurisdiction,” the justices said. “Docket explosion, delay and other allied reasons in the regular courts necessitated the statutory transfer of this canopy to an executive magistrate: a revenue official who exercised jurisdiction upon information being laid by the police. The canopy rested uneasily over the head of the revenue official as well. The police, like the proverbial camel in the tent, occasionally got their noses into the canopy but were stopped in the tracks by the Courts. Then in 2013, the camel, in its entirety, snuggled itself in and the revenue official/executive magistrate was ousted from the canopy and left in the cold.”