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Why In News ?
Rajasthan has promulgated an ordinance providing for prior sanction for investigation against public servants, judges and magistrates for acts done “in discharge of official duties”.
FACTS (For Prelims)
An ordinance is an executive order issued by the President of India that holds the same force and effect as an Act passed by the Parliament. The President has the power to issue ordinances under Article 123 of the Constitution. Article 213 gives the same power to the Governor of a State.
Articles 42 and 43 of the Government of India Act, 1935, gave the same power to the Governor General.
ANALYSIS (For Mains)
Public servants, judges, and magistrates all across India already enjoy immunity from prosecution without prior government permission under Section 197 of the Code of Criminal Procedure (CrPC). The Rajasthan ordinance adds two further levels of impunity – no investigation can be ordered by the police under Section 156 or a magistrate under Section 190 into allegations against public servants, judges, and magistrates, nor can journalists report on those allegations, unless the government grants sanction to prosecute.
DECONSTRUCTING THE MOVE
The Indian Penal Code (IPC) and CrPC deal with the substantive criminal law of the country. The constitution puts the IPC not under the Union list but under the concurrent list. So a state government can also enact a criminal law, like the Central government. Ideally, criminal law should be allowed to be made only by parliament as punishment for any criminal act should be the same across the entire country.
However, a state government can’t overrule a law made by the Central government
The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 –
1.Rajasthan has passed an Ordinance which seeks to protect both serving and former judges, magistrates and public servants in the state from being investigated for on-duty action without the government’s concurrence.
2.It has also barred media from naming the accused or giving details of residence or any identification till the government decides whether the public servant should be investigated.
3.It provides 180 days immunity to the officers. If there is no decision on the sanction request post the stipulated time period, it will automatically mean that sanction has been granted.
4.The ordinance amends the Criminal Code of Procedure, 1973 and also seeks to curb on publishing and printing or publicising, in any case, the name, address, photograph, family details of the public servants.
5.The Ordinance made additions to sections 156 (3) and 190 (1) of the Code of Criminal Procedure (CrPC) which empower a magistrate to take cognizance of an offense and order an investigation.
6.Violating the clause would call for two years imprisonment
The ordinance has been brought in to shield government servants from unnecessary harassment and false allegations. Sometimes people file false cases to defame public officials and prevent them from doing their work.
1.It is being seen as an attempt to put an embargo on the media.Press Freedom is granted under section 19(1) A of the constitution which deals with freedom of speech and expression. Any government which tries to bring such a law will, therefore, go against the basic tenets of the constitution.
2.As per CrPC section 190 (1), a magistrate or a judge can take suo moto cognizance of an allegation or offense against anyone including a public servant. So this proposed legislation is also an attempt to curb the powers of the magistrate or a judge given under the CrPC.
3.The amendments that the state government has tried to bring also goes against the five-judge constitutional bench of the Supreme Court in the Lalita Kumari vs State of UP (2014), which clarifies that if a complaint made against a public servant makes out a ‘cognisible’ offence, a FIR has to be lodged and an investigation begun by the police.
4.The Supreme Court had last upheld the right of a private citizen to set the anti-bribery law in motion in the January 2012. In this judgment, the court had ruled that the constitutional right of a citizen to file a complaint “should not be burdened with unreasonable fetters”.
SOURCE-The Wire (22nd October 2017)