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The thing about a new, omnibus police law is that its ramifications are so far-reaching they call for repeated visits. Chief Minister Nitish Kumar went to great lengths on Saturday to allay fears about the newly-notified Bihar Police Act (2007). Yet, doubts remain whether it fully conforms to the letter and spirit of Article 50 of the Constitution.

This Article provides for the separation of the judiciary from the executive in the public services of the state. Pursuant to it, the Code of Criminal Procedure, 1973 (Act no 2 of 1974) was enacted. As per this law, penal powers were transferred to judicial officers functioning independently of the executive.

"The attending idea was that an independent judiciary, invested with penal powers, would sit in judgement over actions of the executive. But sections 71, 73 and 80 of this Police Act give penal powers to executive magistrates who are part of the executive," says leading criminal lawyer and Deputy Leader of the Opposition in the State Assembly Shakeel Ahmad Khan.

Former executive magistrate PK Sinha agrees. "The 1974 Act came into effect when I was in service. It transferred all penal powers to the judiciary. The executive magistrates were left with only preventive powers. The new Police Act restores penal powers to executive magistrates, violating the CrPC provisions," argues Sinha, who now heads the Samata Party in Bihar.

A case in point, he says, is Section 71 of the new Police act. "It reads as follows: Any person not following any legal order issued under sections 70, 71 and 73 is liable to be arrested and will be liable to pay a fine of up to Rs 10,000/- on being held guilty by a magistrate. A magistrate, by definition of this Act, is an executive magistrate," Sinha points out.

Adds Khan: "This effectively means that participants in demonstrations held at police stations for public causes will be hauled up under Section 73 (obstruction of police work) and convicted by a magistrate. This section provides for a maximum sentence of three months and a maximum fine of Rs 5,000/-. Will such provisions promote democratic aspirations?"

Additional Director General of Police (Headquarters) Abhayanand insists penal action under Section 73 is meant to remain with the judicial side. "This is not my reading of the section," counters Sinha, who finds Section 80 of the Act (punishment by magistrates for specified crime by public) as "truly draconian".

But Advocate General PK Shahi is clear that no provision of the new Act impinges upon the judicial domain. "The separation of the powers of the judiciary and the executive is intact. Some judicial powers have remained with the executive under sections like 107, 116, 144 and 145. It has to be given some more powers to tackle the emerging situation," he adds.