THE CRIMINAL LAWS (RAJASTHAN AMENDMENT) ORDINANCE, 2017- ANOTHER NAME FOR IMPUNITY
The Criminal Laws (Rajasthan Amendment) Ordinance promulgated by Rajasthan Government on
September 6, 2017 requires prior 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 culprit till
the government gives sanction for prosecution.
The Ordinance has already generated considerable controversy. Even a BJP leader of Rajasthan has
called it an assault on democracy. The Congress Vice President has mocked the Rajasthan Chief
Minister 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 cognizable crime involving public servants
and on freedom of press were imposed by his father too in eighties. So what is being done by
Vasundhara Raje in 2017 was done by Rajiv Gandhir in 1986 and 1988. In the former year, his
government issued a Single Directive prohibiting the C B I from undertaking any enquiry 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 the Parliament with the aim to
demoralise the journalists who wrote reports or articles to defame 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
who matter to people 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 on different occasions. 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 first during the Havala case proceedings. The Court
declared this 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 all equally before law. By not doing so, the state is violating the rule
of law, on which our whole democratic structure is based. The Rajasthan Government through this
Ordinance is doing exactly that.
The Rajasthan Ordinance seems to have created some confusion about government’s sanction to be
obtained. It incorporates the need to obtain sanction by amending Section 156 of the Criminal
Procedure Code, but requires that it be obtained under Section 197 of the Code. However, Section
153 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 sanction 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
Criminal Procedure Code 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.
