“Raje’s Ordinance Unconstitutional, Attempt to Legalise Graft”

What do top lawyers think about the Rajasthan government’s new ordinance?

File Photo: Rajasthan Chief Minister Vasundhara Raje addresses at the Festival of Education in Jaipur on Aug 6, 2017. 

(Photo: IANS)

The recent ordinance by the Vasundhara Raje-led Rajasthan government protecting judges, magistrates and public servants from legal probe directly impacts the right to free speech, legal experts say.

The ordinance shields both serving and former judges, magistrates, and public servants from being investigated regarding on-duty action — ie, while acting or purporting to act in the discharge of their official duties — without its prior sanction.

In an interview with NDTV, Raje defended the ordinance, saying that it was necessary to end any frivolous and defamatory allegations against state officials.

Withholding sanctions, according to Apar Gupta, an advocate from Delhi, has always been subject to public criticism, as it encourages a system of “political patronage” in cases of corruption.

Aman Lekhi, a senior advocate at the Supreme Court, opined that this move segregates power wielders from those who don’t in instances of corruption, which is a direct violation of the Article 14 of the Indian Constitution. The article states that everyone is equal in front of the law.

This ordinance is ex facie unconstitutional and will be struck down by any competent court. This is the single biggest attempt to legalise corruption by the Rajasthan state government.

Dushyant Dave, Senior Advocate, Supreme Court

The ordinance also seeks to curb publishing and printing or publicising in any case the name, address, photograph, family details of the public servants. These curbs will remain till the state government has given its nod for any investigations against the said official.

Experts believe that this is an attempt to gag the media and any serious complaint against corruption.

Soli Sorabjee, former attorney-general of India, believes that the state government went a bit overboard and that the ordinance is the equivalent of a gag order.

The constitutionality of it can be challenged. I understand protecting the state government official, but stopping the media from covering it?

Soli Sorabjee, Former Attorney-General

Gupta said that the Constitution allows censorship in some specific context such as in the case of films, but the Rajasthan ordinance was clearly a case of censorship against the press. In India, the press is protected by the right to free speech and expression under Article 19 of the Indian Constitution.

He said by stopping the press from reporting facts on any instances of corruption, the public at large will remain uninformed about any new developments in the matter.

“Accountability isn’t just guaranteed because there is a fear of investigation. It is also guaranteed through vigilance. There is a threat of exposure (through the press) which creates vigilance,” said Lekhi.

But the state government’s move to limit reporting on such matters also found supporters.

The necessity of this ordinance has to be blamed partly on the media because the moment there is an allegation of an offence the media rushes to a judgement. They take sides and tremendously influence the process of justice. So, the government may to some extent is justified in saying that investigation will not begin without sanction so that people can be protected. 

KTS Tulsi, Politician and Senior Advocate, Supreme Court

The state government could take up to six months before taking a decision on allowing any investigation to begin. Anyone found to be contravening the provisions under this ordinance will be liable to up to two years in jail and a fine.

(The story was first published on BloombergQuint)