Why Rajasthan ordinance is a violation of Supreme Court principles
The Criminal Laws (Rajasthan Amendment) Ordinance promulgated by the Rajasthan government on September 6, 2017, makes it mandatory to obtain the permission of the state government before undertaking any investigation against a serving or retired judge or a magistrate or a public servant "in respect of any act done by them while acting or purporting to act in the discharge of their official duties".
The ordinance also forbids the publication of any material that discloses the identity of the alleged culprit till the government gives sanction for prosecution.
Though after facing flak from various quarters, the Rajasthan government has referred the bill to a select committee, it has already generated considerable controversy. Even a BJP leader of Rajasthan has called it an assault on democracy.
Interestingly, Congress vice-president Rahul Gandhi mocked Rajasthan chief minister Vasundhara Raje by reminding her that we are in the year 2017 and not 1817. He, of course, conveniently forgets that restrictions on police powers to investigate cognisable crimes, involving public servants and on the freedom of press, were imposed by his father too in the 1980s. So what is being done by Raje in 2017 was done by former Prime Minister Rajiv Gandhi in 1986 and 1988.
In 1986, Gandhi's government issued a single directive prohibiting the Central Bureau of Investigation from undertaking any inquiry against any officer of the rank of joint secretary or above without prior sanction of the government. In 1988, his government introduced the Anti-Defamation Bill in Parliament with the aim to demoralise journalists who wrote pieces criticising the government. The bill placed the entire burden of proof on the accused in defamation suits.
The only difference between the single directive and this ordinance is that while the former was meant to provide protection to officers of the rank of joint secretary and above, the latter has a much wider reach, covering judicial officers and all public servants in the state, serving as well as retired. However, the idea behind both the initiatives is the same. It is to provide impunity to those in positions of power.
It is surprising that the Rajasthan government has promulgated such an ordinance despite repeated criticism of such protection by the Supreme Court.
The idea that the police should not be allowed to investigate public servants without prior permission of the government came up for hearing before the Supreme Court for the first time during the Hawala case proceedings.
The court declared the idea null and void on two counts. One, it required the police to seek permission from the executive to initiate investigation into a criminal offence, which is contrary to law. Two, it violated the constitutional canon of equality in the application of law.
The court said: "The law does not classify offenders differently for treatment... according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone."
It thus violated Article 14 of the Constitution, which requires the state to treat everyone equally before law. By not doing so, the state will be violating the rule of law, on which democracy is based. The Rajasthan government had set out to do exactly that through this ordinance.
The subject came up for hearing again before the apex court when a petition on the subject was filed by Rajya Sabha MP Subramanian Swamy. The court again stuck to its earlier stand and upheld the petition. It said: "The signature tune in Vineet Narain is: 'However high you may be, the law is above you.' We reiterate the same. Section 6-A offends this signature tune and effectively Article14."
The Rajasthan ordinance seems to have created some confusion over the need for government's sanction in prosecution. It incorporates the need to obtain sanction by amending section 156 of the Criminal Procedure Code (CrPC), but requires that it be obtained under section 197 of the code. However, section156 falls under Chapter XII of the code, which deals with police powers to investigate, while Section 197 is covered under Chapter XIV that lays down "conditions requisite for initiation of proceedings" in the court. Section 197 thus deals with sanctions to prosecute a case, which is different from sanction to investigate.
Protection against prosecution is already available to all public servants under section 197 of the CrPC and section 19 of the Prevention of Corruption Act of 1988.
By giving protection even at the stage of investigation, the ordinance provides double protection to public servants - from investigation as well as prosecution.
It has also been seen that such provisions of law are sometimes used to protect public servants even in cases that have nothing to do with the discharge of their duties.
The Central Vigilance Commission in their final draft of the National Anti-Corruption Strategy prepared in September 2010 clearly said that the "need for prosecution sanction even in those offences which have no connection with the discharge of their official duties and inordinate delay in sanction" is one of the specific bottlenecks in the effective functioning of the CBI.
There is already a culture of impunity that has been built up in this country over a period of time through a combination of legal provisions and tardy functioning of the criminal justice system. The Rajasthan ordinance will only add to this culture of impunity.