EDITORIAL: The federal cabinet's approval of delegation of legal powers to District and Sessions Judges (DSJs) in 19 districts in order to check smuggling is a very welcome step in the right direction, and should begin to fill the vacuum caused by finishing the institution of executive magistracy. These powers have been given under the Covid-19 (Prevention of Smuggling) Ordinance 2020, but this exercise has a background which goes well back into our history and needs to be understood properly. Our administrative system was simply inherited from the British but the fact is that the system introduced much earlier by Sher Shah Suri was so advanced that both Mughals, when the throne was restored with the return of Humayun, as well as the Europeans kept it pretty much intact. The 28 provinces of the Mughal Empire were grouped into nine regions, and each region had one military command called the nizamat and one revenue command called the diwani. When European traders came - the Dutch, French, Portuguese and the British - the Indian economy was the largest in the world and therefore its currency served as the time's most dominant legal tender. That, of course, left the traders with precious little purchasing power to buy the goods that they wanted to sell in Europe.
Interestingly, they were able to overcome this particular impediment by exploiting a weakness typical of the Mughals. Then, as now, the rulers of the subcontinent struggled when it came to tax collection. European companies were able to work out a settlement whereby they were awarded the running of the diwanis, which basically meant tax collection. So Bengal's diwani went to the English East India Company (later British East India Company). They had to pay very heavily for the privilege and the license, renewable at the end of every year, as well as make generous grants/kickbacks to the crown and the ruler's personal pocket, of course. But collecting taxes enabled them to do business and grow richer themselves. So they began penetrating the government as tax collectors but then they saw, that with the diwani already in their hands the only thing standing between them and command of the entire region was the favour of the nizam. That is the point in our history when outside forces began financing local family feuds, like Clive did in Bengal by helping Nawab Sirajud Daula's uncle seize the throne. Then it didn't take too long for the British to become masters of all of India.
Fast forward to Partition and we inherited the British system and the constitution mandated separation of the executive and the judiciary. Perhaps a little more thought should have gone into this decision at the time considering how it didn't really fit in with our peculiar ground reality. Also, before executive magistracy was abolished the district magistrate was also the district judge and the collector. Most importantly, he also controlled the police force and therefore made for a dependable and effective central authority which was never properly replaced. Similarly, the assistant commissioner was also the junior magistrate and deputy collector. That void that was thus created severely impacted our administrative ability, to say the least. That is why the cabinet's decision the other day made so much sense. This way the constitutional separation remains yet the power to check smuggling is given to DSJs rather than deputy commissioners. Hopefully, this measure will prompt deeper thinking in the government also, especially since it has made such tall promises about reforming the country's administrative structure.
We have clearly very slavishly hung onto the system that the British left us for far too long. True, there has been the occasional amendment, just to show that we haven't been sitting completely idle for the last seven decades, but the basic structure has remained grounded in the image of the colonial masters. And with time we have got to the point that even a government seriously committed to reform is struggling right at the beginning. DSJs checking smuggling is a good start, but a lot more will also have to be done.
Copyright Business Recorder, 2020
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