MUZZLING WATCHDOGS
A state government bill seeks immunity for public servants from ‘frivolous cases’
The Criminal Law (Rajasthan Amendment) Bill 2017—the Vasundhara Raje government’s bid to protect judges and public servants from ‘frivolous and false’ cases—tabled in the assembly on October 23 to replace the September 7 ordinance did little to assuage a belligerent Opposition. The contentious order, which effectively gags the media, evoked widespread condemnation from the Opposition Congress and the lawyer community and a tersely worded indictment by the Editors Guild of India.
Realising she was on a sticky wicket, Raje asked a group of ministers along with state BJP president Ashok Parnami to review it the same day. On October 24, the bill was referred to a select committee, which is to submit its report in the budget session. Under process for over a year during which it received governor Kalyan Singh’s approval (after clearance from the Union home ministry, since it seeks to amend a central law), the ordinance makes the state government’s prior sanction mandatory before any preliminary inquiry, investigation or magistrate-ordered FIR can be registered against public servants including the CM and her cabinet, elected representatives, state employees and the judiciary, retired and serving.
It was evidently inspired by legislation brought in by the Devendra Fadnavis-led BJP government in Maharashtra— the Criminal Procedure Code (Maharashtra Amendment) Act 2015—which similarly requires an ‘investigation sanction’ from the state government before a magistrate-ordered FIR under CrPC Section 156 (3) can be registered.
The Raje government’s ordinance ratchets up the Maharashtra law to a whole new level. Besides giving the government 180 days (against 90 days in Maharashtra) to accord or decline sanction, the ordinance also prohibits the media from reporting on allegations against public servants. Any contra-
ventions are punishable with a two-year jail term and fine.
The state government initially insisted the amendment was to protect public servants from harassment. Rajasthan home minister Gulab Chand Kataria says over a third (36 per cent) of the FIRs in the state are registered using CrPC 156 (3), a provision that allows complainants turned away by police to have cases registered through a magistrate’s order. Suggesting that a large proportion of the allegations were frivolous/ malicious, Kataria claims only 60,740 of the 247,756 cases filed between 2013 and June 2017, resulted in challans.
But in creating a new layer of immunity (in addition to that available to public servants under CrPC Section 197, which requires investigating agencies to secure prosecution sanction before committing the investigation to a trial), the ordinance can make it extremely difficult to expose corrupt public servants. The Editors Guild describes it as “a pernicious instrument to harass the media... and drastically curb the freedom of the press guaranteed by the Constitution”. State Congress chief Sachin Pilot says it “reveals the government’s autocratic style, curbing the press while protecting the corrupt”.
Notably, both Maharashtra and Rajasthan’s questionable tinkering with the CrPC have been challenged in court. Senior lawyer Abha Singh, in the Bombay High Court last month, disputed the 2015 Maharashtra legislation as “ultra vires of the Constitution” and “beyond the powers of the state legislature”. A writ petition filed with the Jaipur bench of the Rajasthan HC by A.K. Jain, a lawyer who popularised the use of 156(3) to register cases, and two others, has already challenged the amendment bill in the state.
THE GOVERNMENT’S BID TO RINGFENCE ITSELF WILL MAKE IT HARDER TO EXPOSE THE CORRUPT