Jaipur activist challenges gag ordinance in HC

:A social activist Monday moved Rajasthan High Court challenging a controversial rdinance that shields on-duty public servants from probe without Rajasthan government’s prior sanction.

Activist Bhagwat Gaur, through his counsel Advocate AK Jain, filed the writ in the Jaipur bench of the high court contending that the Criminal Laws (Rajasthan Amendment) Ordinance, 2017, was “in contravention of fundamental rights as enshrined under Part-III of the Constitution of India” and should be held ultra vires. The court will hear the plea on October 27.

The Rajasthan government Monday tabled a bill to replace the ordinance promulgated on September 7.

Talking to HT, Jain said the ordinance was in violation of Articles 14, 19 and 21 of the Constitution. “Public servants have to give details about criminal record even in election affidavits. So how can the government seek to hide their identity and shield them from probe?” Jain asked.

He said the order was arbitrary and against fair investigation. “The government has extended protection to all public servants against investigation, which is violative of Articles 14 and 21 of the Constitution. Protection should be reasonable. It cannot extend to all public servants.”

He said the ordinance violates the independence of the judiciary as it takes away the power of a magistrate to order an investigation, while an SHO or SP still has power to register an FIR against any public servant without any sanction from government.

HERE’S WHAT THE PETITION SAYS:

1. The criminal laws (Rajasthan amendment) ordinance, 2017, expands immunity against investigation and prosecution without the sanction of the government to panch, sarpanch, an MP, MLA, a cooperative society member, a university employees and others.

2. The arbitrary protection against investigation violates Articles 14 (right to equality) and 21 (right to life) of the Constitution, says the PIL.

3. The bill subverts independent investigation of erring bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and efficient investigation.

4. It also takes away a citizen’s fundamental right for a fair investigation, which is a part of the right to life.

5. There is no reason to bring in the changes as public servants are already protected from vexatious litigation under Section 197 of the CrPC.

6. The bill usurps judiciary’s powers. It takes away the power of a magistrate to direct police to register an FIR and probe a complaint, violating the basic structure of the Constitution.

7. It also goes against a fivejudge constitution bench order. In Lalita Kumari vs State of UP case, the Supreme Court had ruled that an investigation in a cognisable offence couldn’t be withheld and registering an FIR was mandatory.

8. The court also said sanction was only required for prosecution and not for opening an investigation.

9. The mandatory approval from the government will forewarn erring bureaucrats before an investigation can even begin.

10. It is not clear what the ordinance aims to achieve.

JAIPUR