The decision of the Vasundhara Raje government to promulgate the Criminal Laws (Rajasthan Amendment) Ordinance, 2017 in the Rajasthan Assembly, which amends Section 156 (3) of the Criminal Procedure Code (CrPC) among other provisions, has landed it in controversy.
The said provision of the CrPC has consistently been used in situations where the police refuse to entertain a complaint and don't register an FIR (First Information Report). The Supreme Court had recently held that the police is obligated to register an FIR even when the Magistrate has explicitly not ordered it to do so and has only ordered an investigation. The law has been settled – that there is no meaning of an investigation without an FIR.
Law and Order is a state subject under the scheme of distribution of powers under the Indian Constitution, between the Union and the state governments. Therefore, the states can change the criminal laws as per their own requirements.
The Bill seeks to curtail the power of the Magistrate under Section 156 (3), in cases where the investigation relates to serving and former judges, magistrates and public servants. In such cases, a sanction from the government will now be required, as per the bill, before such investigations are ordered.
The Bill also amends Section 190 of CrPC, which deals with Cognizance by Courts. Here also, the power is curtailed and no cognizance of an offence can now be taken in cases which involve serving and former judges, magistrates and public servants.
It is important to bring to light provisions contained under Section 197 of CrPC in this regard. This provision also makes an exception for the above-mentioned officials. But this provision, importantly, deals with prosecution of the offences and not the investigation.
The difference being, prosecution under Section 197 has been held to mean as not including investigation and filing of an FIR. Therefore, this means that investigation and filing of an FIR can happen even if there is no sanction to prosecute under Section 197. This is changed by the new Rajasthan Bill which by its operation will also put a bar on the investigation, in addition to placing a bar on the prosecution.
Moreover, the most controversial provisions of this Bill relate to restrictions on the media. The bill provides that there can't be disclosure of the identity of the persons against whom the sanction is pending under the provision. The disclosure provision is wide enough to prevent any kind of reporting by the media relating to the accusation. This is something which is dangerous and absolutely untenable under the law and the scheme of liberty as enshrined in our Constitution.
With respect to the curtailment of freedom of speech of media by the establishment, we have to place this measure of the Rajasthan government in a series of enactments by various successive governments. This dangerous trend was started by the Jawaharlal Nehru government. In a famous case, Romesh Thapar versus the Union of India, the Supreme Court had upheld the right of an individual to criticise the Nehruvian government of that time. In order to neutralise the effect of this, Article 19(2) was amended in the Constitution with a retrospective effect.
This added the words 'reasonable restrictions' for the first time and to this date have been used by successive governments to gag the media in one form or the other, or to restrict individual liberty. This amendment also extended to the government the power to make future laws which violate the Right to Freedom of Speech and Expression in the name of reasonable restrictions. The original Constitution, without the first amendment, did not protect any future laws, which can be framed in violation of Article 19(1)(a), it excluded only the existing laws.
The Rajiv Gandhi government too once tried to curb the freedom of the press by introducing the infamous Defamation Bill in 1988. Thankfully the Supreme Court held that the Right to Freedom of Speech and Expression under Article 19(1) contains right to press too, even though the Constitution expressly doesn't include it in the letter.
The Rajasthan government's Bill, in its current form, is sure to fail the test of constitutionality both under Article 14 and under Article 19.
Article 14 prohibits any arbitrary action by the government. There can't be a more arbitrary legislative action as has been contemplated by the Rajasthan government.
Article 19 guarantees freedom of press, as held by the Supreme Court. This is directly violated by the enactment. As is common knowledge, no government can frame a law in contravention to the Fundamental Rights guaranteed by the Constitution, therefore, the enactment in all probability will fail the test of constitutionality.
Due to the aforementioned reasons, it can be hoped that the state government of Rajasthan either completely drops the idea of enacting such a law or sufficiently alters its provisions to make it constitutionally viable.
The author is research fellow with the Department of Humanities and Social Sciences, IIT Bombay. He can be reached at firstname.lastname@example.org
Updated Date: Oct 23, 2017 18:35 PM