No investigation of judges, public servants sans sanction; gag on media reporting: Rajasthan Ordinance

The state government of Rajasthan last month promulgated an ordinance with a view to preventing investigations into the affairs of serving and retired judges and public servants – and the reporting of the same by the media – without sanction.

The Criminal Laws (Rajasthan Amendment) Ordinance, 2017, was passed after it received gubernatorial assent on September 7. It seeks to amend provisions of the Code of Criminal Procedure as well as the Indian Penal Code to the aforementioned effect.

Firstly, the Ordinance seeks to add a proviso to Section 156(3) of the CrPC.

“Provided that, under the said sub-section, no Magistrate shall order an investigation nor will any investigation be conducted against a person, who is or was a Judge or a Magistrate or a public servant, as defined under any other law for the time being in force, in respect of the act done by them while acting or purporting to act in the discharge of their official duties, except with previous sanction under Section 197 of the Code of Criminal Procedure…”

It also effectively prevents the press from reporting on the same.

“Provided also that no one shall print or publish or publicize in any manner the name, address, photograph, family details or any other particulars which may lead to disclosure of identity of a Judge or a Magistrate or a public servant against whom any proceeding under this section is pending, until the sanction as aforesaid has been or deemed to have been issued.”

Further, Magistrates are similarly prevented from using their power to take cognizance under Section 190 of the CrPC, without prior sanction.

The Ordinance also calls for the insertion of a new provision – Section 228-B –  to the Indian Penal Code. This new provision will make those who contravene the above provisos liable to be punished with imprisonment of up to two years and a fine.

This is not the first time a state government has introduced such amendments in the recent past. The Maharashtra government had also passed an amendment to the CrPC in 2016, as a result of which Magistrates will not be able to order registration of FIRs against public servants without prior sanction of the government.

Lawyer and activist Abha Singh had challenged the same in the Bombay High Court, contending in her petition that the amendment was,

“…ultra vires the Constitution of India and defeats the objective of our country to fight corruption. It has accorded unprecedented feeling of impunity to public servants who otherwise are rarely apprehended for their enormous acts of the Corruption.”

The scope of the Rajasthan Ordinance is wider than the Maharashtra amendment, as it includes within its ambit both serving and retired judges, and poses a serious threat to press freedom. One can imagine that a challenge to the same may happen sooner rather than later.

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