Legal experts have questioned the Rajasthan ordinance that prohibits investigation without prior sanction against judicial officers and public servants, and said the restrictions it imposed on the media impinged on free speech. The ordinance, promulgated on 6 September 2017, prohibits investigation without prior sanction against ‘a Judge or a Magistrate or a public servant’ for any ‘act done by them while acting or purporting to act in the discharge of their official duties.’
On 23 October 2017, the opening day of its state assembly, the Vasundhara Raje-led Rajasthan government tabled the Criminal Laws (Rajasthan Amendment) Ordinance 2017 bill, amending the Criminal Code of Procedure (CrPC), 1973, and restricting the media from naming a public servant until the Rajasthan government sanctions the investigation.
Under Section 197 of the CrPC, public servants, judges and magistrates across India currently enjoy immunity from prosecution without prior government permission. The Rajasthan government has now enhanced the levels of impunity, adding two more layers. According to the new rules, no investigation can be ordered by the police under Section 156 or a magistrate under Section 190 into allegations against public servants, judges and magistrates. Significantly, these rules bar journalists from reporting these allegations, unless and until the state government sanctions the prosecution.
Under the new law, the media too cannot report on the accusation against such a person until the prosecution gets the go-ahead from the sanctioning authority, which may take up to six months.
Constitutional expert Shanti Bhushan said, “It is highly improper and should be quashed. What it means is politicians want to do corruption and do not want to be investigated.” Jurist and former Attorney General Soli Sorabjee said the ‘constitutionality’ of the ordinance was “very doubtful.”
Indian Newspaper Society asks Rajasthan government to withdraw gag bill
The Indian Newspaper Society (INS) has in a statement by its president Akila Urandkar strongly objected to the Rajasthan government’s proposed bill that seeks to gag the press and shield judges and government servants from investigation of any wrongdoing, as an attack on the fundamentals of democracy. In a statement issued on Wednesday 25 October 2017, Urandkar said that, “The INS records its strong opposition to the move by the Government of Rajasthan to gag the press in the guise of protecting serving and former members of the judiciary and public servants from being investigated for on-duty actions.” Although the Bill has been referred to a select committee of the Rajasthan Assembly, “there remains a clear and present danger to the freedom of the press . . . . The proposed legislation attacks the fundamentals of democracy and is prima facie unconstitutional,” she said, adding that it will be “fit and proper” for the state government to withdraw the Bill immediately.
The Editors Guild of India, has also expressed its “deep disquiet over the continued misuse of the law that treats defamation as a criminal offence.” The Guild said that it is concerned that “this provision in the IPC is being employed by many litigants to intimidate journalists writing on matters of public interests and as a coercive tool to dissuade and even threaten the media from carrying out its legitimate responsibilities.”
The Guild’s statement said it recognises every person’s right to approach the country’s courts against defamation, but “defamation should be treated as a civil offence,” and the Guild, “respectfully disagrees with the Supreme Court’s recent judgment upholding the criminality of defamation.” The Editors Guild appealed to the Supreme Court to review its decision “so as to prevent the continued misuse of such a tyrannical provision of law.”
On restrictions that the ordinance places on the media, Justice Shah said, “There is no such bar (on reporting against such officials) in the Veeraswami judgment. So it will have to be tested. This is a restriction on the free speech and expression. So whether it is reasonable . . . . will have to be examined in the context of Article 19(2) (which imposes reasonable restrictions on fundamental right to freedom of speech and expression). He added that it might also lead to conflicts with Lokpal and Lokayukta Act. Senior counsel Dushyant Dave said the ordinance was not just “an attempt to gag the media but also to prevent citizens from fighting corruption.”
Rajasthan High Court issues notices to central and state government
The Rajasthan High Court on 27 October 2017 issued notices to the central and state governments over The Criminal Laws (Rajasthan Amendment) Ordinance, 2017, after hearing seven petitions challenging the ordinance. The notice was issued by a bench of Justices Ajay Rastogi and Deepak Maheshwari while hearing petitions filed by Rajasthan Congress president Sachin Pilot, Aam Aadmi Party leader Poonam Chand Bhandari, advocate Bhagwat Gour, People’s Union for Civil Liberties, social activist Srijana Shreshth and others.
The petitions contended that the ordinance violated constitutional provisions and was ‘illegal.’ In a a short hearing wherein all seven petitions were clubbed together, Sachin Pilot’s petition was listed first. So the court made a pointed query that, “If you are asking for a stay on the ordinance, is there any case where a case might not have been registered because of it, or if the press was stopped from publishing anything,” said advocate Ajay Kumar Jain, who was representing Gour.
Jain said he told the court about a case against a top Jaipur district administration official and another against a Jaipur civic agency where the court has not granted sanction and nor have the allegations of irregularities been published anywhere because of the ordinance. “The court asked the state to submit its reply in four weeks, and listed the matter for November 27,” said Poonam Chand Bhandari, who is also in-charge of AAP’s Rajasthan Legal Cell.
(The above story is based on inputs from The Indian Express, The Hindustand Times and www.thewire.in)