Activists associated with People’s Union for Civil Liberties (PUCL), in a press conference addressed by Prem Krishan Sharma, Radha Kant Saxena and Kavita Shrivastava, condemned Rajasthan govt for bringing in the ordinance (number 3 of 2017) which Amends the CrPC and IPC and introduces sections and provisos to gag the media and lipping the powers of the magistrate to order investigation, investigate or take cognisance of complaints against public servants (including judges and magistrates).

The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 promulgated on 6th September, 2017, published on the 7th of September, 2017 in the Gazette is a sinister attempt of the Government of Rajasthan to abridge the fundamental right of speech and expression guaranteed under the Indian Constitution and to thwart the citizens right to access criminal justice system in cases of complaints against abuse of law by public servants by introducing 2 provisos to Sec. 156 (3) and Sec. 190 of the Code of Criminal Procedure and by inserting a new offence in the Indian Penal Code by way of introducing a new clause, Sec. 228-B, which makes an offence termed “disclosure of identity of certain public servants”.

The true intention of the Amendments introduced is to place an complete embargo or ban on a Judicial Magistrate before whom a complaint of having committed offences is made against any public servant, (including a Judge or Magistrate), from either ordering the police to investigate the complaint or worse, from any investigation being conducted against the said public servant (sec. 156(3) Criminal Procedure Code, new provison introduced) for acts done by them while acting or purporting to act during discharge of the official duties except without the previous sanction of the government under sec. 197 CrPC.

Very funnily, and perhaps exposing the motivated nature of the Government to somehow protect corrupt public servants and to win over them in support of the ruling party, is the amendment brought about to sec. 190 (1) of the CrPC directing that “no Magistrate shall order investigation nor will any investigation be conducted” which is a meaningless amendment as sec. 190(1) CrPC only provides for the Magistrate to take on file a private complaint filed alleging commission of an offence; this provision does not give power to the Magistrate to order investigation. This where is the need for this amendment?

We should point out that the amendments are superfluous and unnecessary as the existing provision in sec. 197 already provides protection to public servants by making it mandatory for a court to take cognisance of an offence against public servant only after getting “prior sanction” of the government. The ominous intent in the amendment becomes clear when we notice that while sec. 197 uses the term “cognisance” the new amendment refers to the word “investigate”.

The true and alarming intention therefore is to prevent at the very threshold, any possibility of “investigation’ being ordered by a Magistrate when clinching evidence is prima facie brought before the court. The amendment in a way exposes the scant respect the government has for the judicial system, for the entire criminal justice system is premised on the fact that judicial officers represent “trained judicial minds” who ensure implementation of criminal laws in an unbiased, independent and fair manner.

The truly diabolic and “chilling” effect or sinister purpose in the new amendment is exposed when we consider the same Amendment Act has introduced a new proviso to the proviso, stating that no one “shall print or publish or publicise in any manner the name, address, photographs, family details or any other particulars which may lead to disclosure of the identity of such public servants” until such time that the State Government has given sanction to prosecute. The Ordinance introduces a new offence, sec. 228-B of the Indian Penal Code, making it a criminal offence on the part of anyone who discloses identity of certain puboic servants and prvides for 2 years imprisonment and fine, if convicted.

The menacing import is very clear: to silence the media and to prevent the judiciary from exercising its judicial function of setting the criminal law in motion. In effect, what the Government cannot do by moving a Constitutional amendment to abridge the fundamental right of speech and expression the Government is doing by the back-door, to make it impossible for people to seek justice against corrupt public servants.

Legally, the amendments to the CrPC and IPC brought through the ordinance, goes against the unanimous ruling of the 5-Judge Constitutional Bench of the Supreme Court in `Lalita Kumari vs State of UP’ (2014) which clearly clarifies, that in case where the complaint against a public servant makes out a `cognisable’ offence, a FIR has to be lodged and investigation begun by the police officer. In cases where the alleged offences are non-cognisable or are about corrupt acts, then the Police officer or Investigation Officer (IO) in empowered to initiate a preliminary enquiry into the complaint, and in the event that a prima facie case is made out the police officer should place the complaint received and the report of the preliminary enquiry making out a prima facie case before the `concerned court’ and seek directions to obtain sanction to prosecute u/s 197 against the accused public servants.

This legal principle has been very succinctly summarised in the Circular of Government of Rajasthan, Home (Group-10) Department No. F.11(35) / Home – 10/2015 dated 24.08.2015. This Circular issued by the Addl. Chief Secretary, Home, Mr. A. Mukhopadhyaya very clearly summarises the legal position that when a non-cognisable offence is made out against a public servant, then the Prosecuting Officer of the concerned court after receiving the report from the Polcie Officer should bring the facts to the knowledge of the court about the public servant and the alleged offences and inform the court that no cognisance should be taken until and unless the requisite sanction under section 197 CrPC or Sectio 19 Prevention of Corruption Act is officially obtained and is on record.

Seen against this background it becomes explicitly clear that the Ordinance introducing amendments to sec. 156(3) Proviso, Sec. 190(1) proviso,of CrPC and introducing a new offence, sec. 228-B, IPC are in reality meant to neutralise the Constitutional bench ruling in Lalita Kumari case (2014), its own Circular of 2015 by removing the power of the police to initiate even a preliminary enquiry where a prima facie case is made out based on the complaint. The effort is to defang the police and investigating authorities by removing powers vested with them by law to initiate even a preliminary enquiry. To make it doubly sure that the government will protect corrupt officials, the Ordinance removes the power of the Magistrate to take cognisance or give directions to the police to investigate offences where the facts in the complaint make out a prima facie case.

Globally it is now well recognised that the `Right to Corruption-free governance is a fundamental right and a basic human right’. The Amendment institutionalises impunity and provides immunity to corrupt officials against even a preliminary enquiry when facts clearly establish an offence.

We would like to ask the Vasundhara Raje Government, as to why the need for an ordinance to keep everything under wraps. IS the intent of this ordinance to prevent the expose’ of the faces of corruption in this Government or prosecute or probe any of the cases of corruption as a part of the run up to the election in 2018.

It is also important to note that the ordinance has not been uploaded as yet on either Home or the Law Department website. The Rajasthan Rajbhawan (Governor’s) website only provides a list of ordinances and Acts promulgated. However although the list has been last updated on the 11th of September, ithas no update of ordinance number 3, which is the one discussed above. Although ordinance number 2 was also on Criminal Law ( Rajasthan Amendment).

Interestingly the Governor’s website has more than 24 pressnotes on its website after the 6th of September, the date when the ordinance was promulgated, including greetings for KarvaChauth to the people of the state.

This press note has also not been put up on any website, neither law and justice, nor Home nor the police. It clearly shows that the intent was to suppress the information form the public, leave alone holding pre legislative consultation, an imperative, issued as a GO by the UPA Government in 2014 January.

The only mention that this important ordinance gets is in a press note of the DIPR on the 8th of September.

The PUCL demands that the Government immediately repeal this ordinance and not place it in the forthcoming State Assembly session for its passage to make an Act.

The PUCL will challenge this ordinance in the Rajasthan High Court at the earliest.

Kavita Srivastava (President)
Anant Bhatnagar ( General Secretary)