On 7 September, 2017, the Rajasthan government—acting through the governor— promulgated The Criminal Laws (Rajasthan Amendment) Ordinance, 2017.
The ordinance—which is a temporary law put in place by the governor while the legislature is not in session—amended two sections of the Code of Criminal Procedure, 1973 (CrPC), namely Sections 156 and 190. In essence, it mandates that if an investigation is to be carried out against "a judge or a magistrate or a public servant" (hereinafter "officials") for anything done by them as part of their official work, then a sanction from the government is required.
This in itself is not especially path-breaking. As Justice (retd.) AP Shah, who currently serves as the Chairman of Law Commission told The Indian Express, 'a complaint against a Supreme Court/high court judge cannot be made without the permission of the respective chief justice. Further even to proceed against a magistrate, the investigating agency must take permission from the chief justice of the respective high court.'
Further under Section 197 of the CrPC, the sanction of the government was anyway required for the court to take cognisance of such cases against "a judge or a magistrate or a public servant". However, where Section 197 applies only to those officials whose removal requires the government's sanction, the ordinance extends the protection of a government sanction to many officials who are not covered by Section 197.
There was thus adequate protection afforded to these authorities to protect them from prosecution even before the Rajasthan government's ordinance. The ordinance however, took it a step further as it now prohibits even an investigation against the officials without sanction.
The gag provision
Till here, the ordinance was not a earth-shattering departure from the status quo. However, now comes the kicker. The ordinance also stops anyone from reporting in any manner the name, address, photograph, family details, or any particulars which may lead to the disclosure of the accused's identity. It further mandates a two-year jail term for those who report such facts.
While some would say that reporting is still allowed, a report which follows the ordinance will look something like this:
A person (can't reveal identity) did something (can't reveal details which may lead to identification), somewhere (ditto as above and also can't reveal address).
It is this aspect of the ordinance which caused the present furore in the case. The Editors Guild of India said that "rather than taking stern measures to prevent and punish those who indulge in frivolous or false litigation, the Rajasthan government has passed an ordinance that is bent on bludgeoning the messenger." Congress vice-president Rahul Gandhi took a swipe at Rajasthan chief minister Vasundhara Raje over the ordinance, pointing out that the year was "2017, not 1817". Rebel BJP leader Ghanshyam Tiwari also opposed the ordinance, saying it was "aimed to strangulate democracy" in the state.
Frivolous cases versus right of the public to know
While it can be debated just how much protection public authorities need from being investigated, it is undeniable that the public has a right to know what these officials are doing. The workings of the courts and bureaucracy are complex and it is up to the media to ensure they discharge their functions properly. The general defence given for such protections is that otherwise false cases will be filed and honest officials will be harassed.
Even if we accept this defence, it still doesn't make sense to gag the media. If the media reports with due care and it specifies that just allegations have been made and nothing has been proven, then that should be that. If it makes mistakes or paints someone as guilty without a trial then the law of defamation is available to get adequate damages.
While this course of action might not seem ideal to some, it is the price we pay for a functioning democracy where the media must have the freedom to write. Prior censorship might be convenient in some cases but is extremely detrimental in the long run. It is also against the law of the land. In January, the Supreme Court noted that it will not regulate media content, and the role of a court or a statutory authority will come in only after a complaint is levelled against a telecast or publication. The bench led by then-Chief Justice of India JS Khehar made it clear that pre-broadcast or pre-publication censorship is not the business of the court.
Further, trial by media is certainly a problem in India and we saw the ill-effects of it in the recent Aarushi-Hemraj murder case. The answer to this is not to simply gag the media but to go after those sections of the media which engage in it. Also if the problems of false cases are so large and systemic in nature then shouldn't all investigations (against any person) require the prior sanction of an appropriate authority?
The government's defence
The Rajasthan government has been curiously shy in defending the ordinance as noted by DNA which said that there was 'no counter attack, no retaliation strategy or even propagation of the clarifications that were issued on Saturday by the government.' Only Home Minister Gulab Chand Kataria has addressed the ordinance, saying it was brought to check false cases.
A more detailed defence of the ordinance can be found in the form of a press release given out by the government. Starting on the defensive, it states that the ordinance does not weaken the zero tolerance stance of the government against corruption. It also states that nowhere in the ordinance does the government speak of saving corrupt officials. It then points to Maharashtra which also has a similar law.
The main defence it puts up is that the ordinance will "curb false cases so that honest and distinguished public servants can discharge their duties without any mental harassment." The government then also said that regardless of the merits of the case, the lawsuit becomes news for the media and the official faces social humiliation. However, that is true for a lot of cases. By following the Rajasthan government's logic, all media coverage of all cases should be banned because it could lead to "social humiliation".
It then also says that the ordinance does not prevent legal action against officials. If sanction is given then the case can proceed. Now, most of the public servants covered under this ordinance work for the Rajasthan government. No prizes for guessing where the sanction for investigation comes from. It is of course, the Rajasthan government.
The Supreme Court has in multiple cases reiterated that justice should not only be done but also be seen to be done. When the Rajasthan government takes over the power to stop investigations into possible corruption cases against its own officials, it degrades the confidence of the people in the authorities and goes against the Supreme Court mandate.
Finally in a bizarre piece of argument, the government admits that in the last three-and-a-half years, the Anti-Corruption Bureau has registered 1,158 cases against Rajasthan officials. That works out to a little under a case a day. It also says that Rajasthan is one of the select states where senior IAS officers (two existing and one retired) have also been jailed for corruption charges. While it is ostensibly meant to show that corruption is being addressed in the state, it ends up underscoring the fact that corruption is a big problem in Rajasthan. It requires stricter provisions against officials and not more avenues for them to protect themselves.
The Rajasthan government is looking to replace the ordinance with an Act
The ordinance received little media attention at the time it was promulgated. However, over the last few days it has dropped the Rajasthan government in the eye of a storm. Despite the opposition however, the government on Monday tabled the Criminal Laws (Rajasthan Amendment) Bill in the Rajasthan Assembly.
With the BJP in an overwhelming majority, the Bill has a good chance of getting passed. If it does so, it will be strong statement against free speech and will impede investigations in cases against the officials it protects. It will also lay down a blueprint for other states to follow should they choose to protect their officials.
At a time when the government must work to gain the trust of the public, the Vasundhara Raje government seems to have done the opposite. And in doing so, it has prioritised public servants over the public.
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Updated Date: Oct 23, 2017 15:38:01 IST