The Criminal Laws (Rajasthan Amendment) Ordinance, 2017

On September 6, 2017, the Governor of Rajasthan had promulgated the Criminal Laws (Rajasthan Amendment) Ordinance, 2017 which amends section 156 and 190 of the Code of Criminal Procedure and makes it mandatory to obtain a Government Sanction before investigating both serving and former judges, magistrates and public servants for on-duty actions. On October, 23, the government has also tabled the Criminal Laws (Rajasthan Amendment) Bill in the state Assembly.

What is the Ordinance Making Power of Governor?

Governor of an Indian state draws ordinance making power from Article 213 of the constitution. This article empowers the governor to promulgate ordinance on urgent matter during recess of legislature. To issue an ordinance, the governor must be satisfied with the circumstances that make it necessary for him / her to take immediate action.

Governor cannot promulgate an ordinance in any of the three situations give below:

• If the ordinance has the provisions which of embodied in a bill would require president’s sanction.
• If the ordinance has the provisions which the governor would reserve as a bill containing them for the president’s sanction.
• If an act of the state legislature has the same provisions that would be invalid without the assent of the president.

All ordinances promulgated by the Governor in the state have the same effect and force. The ordinance must be laid before the state legislature when it reassembles and it must be upheld by the State legislature, failure to which the ordinance would be invalid.

What are powers of state government to amend Criminal Code of Procedure?

The criminal laws such as Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) have been listed in the concurrent list of 7^th schedule of the constitution. The state legislatures have the power to amend these laws to the extent that they don’t abrogate the laws made by the parliament.

What are Key amendments in the ordinance / bill?

The key amendments to CrPC and IPC by this ordinance are as follows:

Amendment to section 156 and section 190 CrPC

• These amendments put further proviso to the existing law which mandates that if an investigation is to be carried out against “a judge or a magistrate or a public servant” for anything done by them as part of their official work, then a sanction from the government is required.
• Besides, no investigation will be conducted by any investigating agency against the persons specified without there being any prosecution sanction.
• It also 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.

Adding new section 228B in IPC

• This new section provides that contravention of the above provision, would entail a maximum imprisonment of 2 years, along with fine.

Since it’s an ordinance, the government would need to get a bill passed before the expiry of ordinance. As soon as the Assembly session started, the state government introduced a bill with same provisions in the state assembly. This ordinance and bill have come under heavy criticism from all sides for the law, which in effect, may shield the corrupt officers.

What is the before amendment / after amendment position of the affected provisions?

Section 156 of CrPC deals with the Police Officers’ power to investigate cognizable cases. This section mandates that a police officer in charge of police station can investigate any cognizable case in his / her area without order of a Magistrate. The police officer has been provided protection from investigation for an on-duty action under this section. Under section 190, the magistrate is empowered to order such investigation. Similarly, CrPC section 197 details the sanctioning authorities with respect to prosecution of judges and public servants.

After the amendment, the following changes occur:

• The protection from investigation for on-duty action has been extended to each and every public servant defined under any law. This would create a dubious list of protected officers including every kind of government servants (may include the panch, sarpanch also).
• The Magistrate’s power under section 190 has been curtailed and he has been barred from ordering any investigation against public servants for on duty actions. Now Magistrate can order only under provisions of section 197 from sanctioning authority.
• However, the time period for such sanctions has been extended to six months. This in effect may provide enough time for the culprits to significantly destroy the evidences and allure / intimidate the witnesses / complainants.

How the State Government Defends the ordinance / bill?

The state government says that the objective of this ordinance and proposed law is to prevent the misuse of section 156(3) which allows tarnishing the image of honest officials by levelling baseless allegations.

How the ordinance targets media?

This ordinance mandates 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 identity of a judge or magistrate or a public servant against whom proceedings under this section is pending until the sanction has been deemed to have been issued.

Thus, it also targets media, which through media trial affects the morale of public servants. The government argues that between 2010 and 2017, 73% of such probes (against public officers) resulted in their not being guilty. Media has already condemned the law as draconian which can possibly put the journalists also behind bars.

What is current status?

Ordinance is in effect and a bill has been introduced in parliament. On October 23, the ordinance has been challenged in Rajasthan High Court on account of its possible violation of Article 14 (equality before law), Article 19 (Freedom of Speech) and Article 21 (protection of life and personal liberty).

What has been stance of Supreme Court on section 197?

The Supreme Court has observed that the Section 197 of CrPC has largely become a mean to delay prosecution in the corruption cases. In 2015, the SC had ruled that a public servant cannot by default claim legal protection of prior sanction against prosecution under CrPC section 197, which says that no court should take cognisance of criminal charges against a public servant unless previous sanction to prosecute him is received from a competent authority. The court said that:

• Protection under Section 197 of CrPC is available only to a public servant for the honest discharge of his duty.
• Prosecution for corruption should be exemplary and without delay.
• Protection cannot be claimed immediately after a complaint is lodged.
• The question of prior sanction would be considered later, during stages in the criminal trial, as and when the need arises.
• Procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.

The court also observed that it is section 197 of CrPC which allowed the public servants to be treated as a special category of persons. The protection has been given in public interest but should not be treated as a shield to protect the corrupt.