Rajasthan's 'Gag Law' Challenged, BJP Lawmakers Among Critics

An ordinance or executive order put out last month by the Rajasthan government bars courts from taking up complaints against public servants without the government’s approval

A petition has challenged a controversial Rajasthan law just before its introduction in assembly

JAIPUR: Rajasthan’s widely-criticised order shielding ministers, lawmakers and government officials from investigation into complaints against them was challenged in the High Court today and openly opposed by two lawmakers of the ruling BJP – one even referencing the Emergency of 1975. A petition in the court says the order allows a “large section of the society the license to commit crime”. The ordinance or executive order put out last month by the Vasundhara Raje government stops courts from taking up complaints against public servants without the government’s approval. It also makes it a crime for the media to report on the accused minister, lawmaker or official without sanction.

Promulgated on 7 September, the Ordinance provides a time limit of 180 days for the authorities to consider a sanction request. If no decision is taken within the time limit, the sanction would be deemed to have been provided. It also restricts media reporting by prohibiting disclosure of identity of the public servants, till such sanction is obtained….

The Petition, filed by one Mr. Bhagwat Gour through Advocates Ajay Kumar Jain and Aditya Jain, now claims that the Ordinance provides a large section of the society with a “license to commit crimes” and alleges violation of Articles 14, 19 and 21 of the Constitution of India. The Ordinance, he further submits, “creates a huge privilege class and thereby subverts the normal investigative process”….

With regard to violation of Article 14, the Petition submits, “Impugned provision is wholly subversive of independent investigation of culpable bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and inefficient investigation. There will be confidentiality if the investigation is not insulated from political and bureaucratic control and influence because the approved is to be taken from the government….

The very nexus of criminal bureaucrat – Politian which is subverting the whole polity would be involved in granting or refusing prior approval before an investigation can be ordered by the Magistrate, so the Ordinance being arbitrarily unreasonable
and also ultra vires of Article-14 of the Constitution of India.”…

Mr. Gour, further, makes reference to various judgments rendered by the Supreme Court in this regard, wherein it has been held that sanction is required only for the purpose of taking cognizance of the offence and not for initiation of the investigation.

Furthermore, he asserts that the Ordinance would hamper independent investigation, submitting, “… impugned provision is wholly subversive of independent investigation of culpable bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and inefficient investigation.

There will be confidentiality if the investigation is not insulated from political and bureaucratic control and influence because the approved is to be taken from the government.

The the very nexus of criminal bureaucrat – Politian which is subverting the whole polity would be involved in granting or refusing prior approval before an investigation can be ordered by the Magistrate…”

The Petition, thereafter, seeks setting aside of the Ordinance on the ground of it being “ultra vires, void and unconstitutional”….

Here are the latest developments in this big story:

BJP lawmakers Narpat Singh Rajvi and Ghanshyam Tiwari have gone public with their objection to what critics have dubbed the “gag law”.
“This is against the principles of the party. We did not fight against the Emergency to have a BJP government bring such a law,” Mr Tiwari told NDTV.
The new rule gives the government six months to decide if a court should order an inquiry into a private complaint against a minister, lawmaker or an official.
It also bans the media from disclosing the identity of the judge or any public servant facing allegations, unless the government has vetted the case. Journalists can be sentenced to two years in jail for violating the rule.
A petition by a lawyer calls the order “arbitrary and malafide” and says that “a big large section of society has been given a licence to commit crime”.
Even after the legal challenge, the Raje government went ahead and tabled the Criminal Laws (Rajasthan Amendment) Ordinance in the state assembly, where the BJP has 162 of 200 seats, enough to push laws without hurdles.
Congress leader Sachin Pilot, leading a black band protest outside the state assembly, said, “We will not allow this law to come into force under any circumstance. This is their plan to cover up their own corruption.” His party leader Rahul Gandhi had tweeted earlier: “Madam Chief Minister, with all humility we are in the 21’st century. It’s 2017, not 1817.”
Confronting widespread outrage, the Rajasthan government defended its move, saying a law was necessary to end “frivolous allegations” meant to defame ministers and officials. Rajendra Rathore, Rajasthan’s Parliamentary Affairs Minister, told NDTV, “People were filing false cases against public servants and that is the reason we have brought this law.”
In a strong appeal to Ms Raje, the Editors Guild said the law “gives untrammeled power to even imprison journalists” and “endangers freedom of the press”.
The Congress-led government of Manmohan Singh had first moved similar changes in 2013 to the anti-corruption law, ostensibly to protect honest public servants. The BJP government in Maharashtra has already passed a law like this, but no law has tried to gag the media before.