Rajasthan ordinance for babus, netas: 10 reasons why petition calls it unlawful

The Rajasthan government on Monday tabled in the assembly a controversial ordinance that shields public servants and politicians from investigation without the government’s sanction.

A lawyer has challenged in the Rajasthan high court the ordinance that also bars courts from taking up complaints against public servants, such as serving and former judges, lawmakers, ministers and officials.

The criminal laws (Rajasthan amendment) ordinance, 2017, which was promulgated on September 7, also bars the media from naming an accused till the government gives its nod for investigation. Violators face up to two years in jail.

The ordinance, which makes changes to the criminal procedure code (CrPC), has caused a huge uproar and the public interest litigation describes the ordinance as unconstitutional.

Here’s what the petition that challenges the ordinance says:

1. The criminal laws (Rajasthan amendment) ordinance, 2017, expands immunity against investigation and prosecution without the sanction of the government to panch, sarpanch, an MP, MLA, a cooperative society member, a university employees and others.

2. The arbitrary protection against investigation violates Articles 14 (right to equality) and 21 (right to life) of the Constitution, says the PIL.

3. The bill subverts independent investigation of erring bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and efficient investigation.

4. It also takes away a citizen’s fundamental right for a fair investigation, which is a part of the right to life.

5. There is no reason to bring in the changes as public servants are already protected from vexatious litigation under Section 197 of the CrPC.

6. The bill usurps judiciary’s powers. It takes away the power of a magistrate to direct police to register an FIR and probe a complaint, violating the basic structure of the Constitution.

7. It also goes against a five-judge constitution bench order. In Lalita Kumari vs State of UP case, the Supreme Court had ruled that an investigation in a cognisable offence couldn’t be withheld and registering an FIR was mandatory.

8. The court also said sanction was only required for prosecution and not for opening an investigation.

9. The mandatory approval from the government will forewarn erring bureaucrats before an investigation can even begin.

10. It is not clear what the ordinance aims to achieve.