What is the Difference Between Executive and Judicial Magistrate?

Difference between Executive Magistrate and Judicial Magistrate

NEWS CONTENT ENGLISH

Why in the News?

• The detention of some political leaders during protests against the Special Intensive Revision (SIR) of electoral rolls has brought the powers of Special Executive Magistrates (SEMs) into focus.
• The issue has also raised questions about the difference between Executive Magistrates and Judicial Magistrates, particularly regarding their powers over preventive action and personal liberty.

Who are Special Executive Magistrates?

• Executive Magistrates (EMs) are part of the executive branch of government and primarily deal with public order and administrative matters.
• They are different from Judicial Magistrates (JMs), who are part of the judiciary and deal with criminal cases.
• Under Section 14 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the State Government appoints Executive Magistrates in every district.
• One Executive Magistrate is designated as the District Magistrate (DM).
• Under Section 15, the government can appoint Special Executive Magistrates for particular areas or specific functions.
• In Delhi, certain police officers can be authorised to exercise Executive Magistrate powers under the Delhi Police Act.

Executive Magistrate vs Judicial Magistrate

The separation between the two is based on the broader constitutional principle of separation of the executive and judiciary.

Powers of Executive Magistrates

• One of the most important powers of an Executive Magistrate is under Section 163 of the BNSS, 2023, which replaced Section 144 of the CrPC.
• It allows an authorised Executive Magistrate to issue orders in urgent situations involving:
  • Apprehended danger to human life or safety
  • Disturbance of public peace
  • Riots or similar situations
  • Public nuisance
  • Situations requiring immediate preventive action
• Such orders can restrict activities, including public assemblies, when legally justified.
• Executive Magistrates can also take preventive measures such as requiring individuals to furnish security for keeping the peace or maintaining good behaviour.

What is Preventive Arrest?

• Preventive action is intended to stop a possible offence or disturbance before it occurs, rather than punish a person for an offence already committed.
• The BNSS contains provisions dealing with preventive action by police and Executive Magistrates.
• Section 170 of the BNSS deals with preventive action by police to prevent the commission of certain cognizable offences.
• Section 126 of the BNSS provides for proceedings requiring security for keeping the peace in certain circumstances.
• Preventive powers are important for maintaining public order, but they also raise concerns because they can affect an individual's personal liberty.

Constitutional Safeguards

• Article 22 of the Constitution provides safeguards relating to arrest and detention.
• However, Article 22(3) states that certain safeguards under Article 22(1) and 22(2), including the requirement of production before a magistrate within 24 hours, do not apply to persons detained under a law providing for preventive detention.
• The use of preventive powers has therefore been the subject of judicial and Law Commission scrutiny, particularly because of its possible impact on individual liberty.

Historical Background

• Preventive measures have historical roots in British legal traditions. The Justices of Peace Act, 1361 gave English justices powers to prevent breaches of peace and require certain persons to provide security for good behaviour.
• Similar ideas later entered India's colonial criminal procedure framework and continued after Independence through the CrPC. The BNSS, 2023, which came into force on July 1, 2024, has replaced the CrPC while retaining several preventive-law provisions.

Why is the distinction important?

• The difference between Executive and Judicial Magistrates is important because it reflects the principle that administrative control and judicial decision-making should remain institutionally separate.
• Executive Magistrates primarily work to maintain public order and prevent disturbances, while Judicial Magistrates exercise judicial authority over criminal proceedings.

Practice Question 

Q. With reference to Executive Magistrates, Judicial Magistrates and preventive action under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, consider the following statements:

1. Special Executive Magistrates may be appointed by the State Government for particular areas or specific functions. 
2. Executive Magistrates are administratively subordinate to the District Magistrate, while Judicial Magistrates are under the control of the High Court. 
3. An order under Section 163 of the BNSS can be issued only by a Judicial Magistrate because it may restrict fundamental rights. 
4. Article 22(3) excludes persons detained under preventive detention laws from certain safeguards available under Article 22(1) and 22(2).

Which of the statements given above are incorrect?

(a) 1, 2 and 4 only
(b) 3 only
(c) 3 and 4 only
(d) 1, 2, 3 and 4 

Answer: (b) 3 only

Explanation:

• Section 15 of the BNSS, 2023 allows the State Government to appoint Special Executive Magistrates for particular areas or specific functions. Hence, statement 1 is correct.
• Executive Magistrates are subordinate to the District Magistrate, whereas Judicial Magistrates function under the control of the judiciary and ultimately the High Court. Hence, statement 2 is correct.
• Section 163 of the BNSS empowers an authorised Executive Magistrate, not a Judicial Magistrate, to issue orders in urgent cases involving apprehended danger, public nuisance or disturbance of public peace. Hence, statement 3 is incorrect.
• Article 22(3) excludes persons detained under preventive detention laws from certain safeguards contained in Article 22(1) and 22(2), including the ordinary 24-hour production requirement. Hence, statement 4 is correct.