Rajasthan Ordinance Violates Freedom of Speech and That’s Not All

The Rajasthan Govt has enacted a law that is unconstitutional on multiple grounds and should be struck down

On 21 October, many of us woke up to the news that the Rajasthan government passed an ordinance in September which requires prior sanction (from the state or central government as applicable) for probes into the activities of public servants and judges in the course of their official functions. The news was reported first on some news channels, and the Press Trust of India followed with a wire copy that was republished by most news organisations.

Also Read: Rajasthan Govt Ordinance Shields Judges, Babus From Being Probed

Unfortunately, just reporting on this news is not sufficient, because the full extent to which this ordinance is problematic is not easily apparent. And if that full extent is not understood, it is possible that the measure will not properly be challenged, or any challenge may be restricted to just the issue of press freedom.

It’s Not Just About Press Freedom

Some commentators have pointed to the fact that the ordinance imposes a prior restraint on free speech by banning the naming of any judge or public servant being investigated, and punishing any violations of this as a crime. This is, of course, the most obvious problem with the ordinance, and I’ll come back to it shortly.

But before we even get to the provisions of the ordinance that prevent effective reporting on any such investigation, we should also note that a restriction on investigations is, in itself, a massive deal.

Many people reading this news, including those with a legal or political studies background, may find themselves wondering why such a big deal is being made about this in the first place. This is because there already exists a provision in the Code of Criminal Procedure 1973 (CrPC) dealing with prior sanction, and judges and public servants.

However, that provision (section 197) deals with prosecution of judges or public servants. The reasoning behind doing this is also clear, since it is noted in the provision (reproduced below) that the relevant public servant should be one who cannot be removed from office without the permission of the government – since prosecution may lead to a conviction which would require their dismissal, it makes sense to get the government’s permission before this takes place. Section 197(1) says that:

“When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction…” (emphasis supplied)

How the Ordinance Goes Beyond Existing Law on Prior Sanction

The amendments brought about by the Rajasthan government are therefore a divergence from the existing provision because they don’t deal with prosecution – they deal with investigations. The ordinance amends two provisions in the CrPC which deal with initiation of investigations:

1. Section 156 – which deals with the power of the police to investigate cognizable offences; and
2. Section 190 – which deals with the power of Magistrates to take cognizance of offences and order inquiries.

The amendments make it impossible for police to investigate, or Magistrates take cognizance of, actions by public servants or judges in the course of their duty, that are alleged to be offences, without prior permission from the government. This effectively bars any investigations into allegations of impropriety by public servants while the ordinance is in force (which is till 7 March 2018), unless the government okays such investigation.

It is difficult to see how this could possibly be justified. No other such state amendment affects the ability to investigate such incidents. Recourse to the courts is the only option when faced with corruption by a public servant, for example, but such cases can go nowhere without an investigation by the police, or ordered by the courts. Given that the offences alleged may be by a public servant tied to the Rajasthan government, how is it possible to ensure that the government will provide its permission to investigate the case?

The reasoning behind requiring prior sanction for prosecution is also not relevant here – as pointed out already, that applies only to public servants or judges whose positions cannot be terminated without prior sanction of the government in the first place. This is why the provision doesn’t violate Article 14 of the Constitution for treating such people differently from others.

The Rajasthan ordinance, on the other hand, fails that test by applying to every judge or magistrate or public servant. If their termination can take place without government permission, there is no requirement to get permission to prosecute them – so why should they be protected from investigation? And remember, the government permission only becomes important because prosecution could require dismissal – that isn’t the case with a mere investigation.

How the Ordinance Falls Foul of Supreme Court Decisions on Prior Sanction

One of the defences that we can probably expect to be raised by the Rajasthan government is that even though the heading of section 197 says it deals with prosecution of judges, the actual text imposes a requirement to get government sanction before courts can take cognizance of offences. As a result, they will try to argue that their ordinance only tries to clarify and harmonise the existing position of law, not add to it.

This would, however, fly in the face of an existing Supreme Court precedent. In Dr Subramanian Swamy v Dr Manmohan Singh , it was held that the procedural provisions relating to prior sanction “must be construed very narrowly” and “in such a manner as to advance the causes of honesty and justice and good governance.”

Following this reasoning, the apex court in Inspector of Police v Battenapatla Venkata Ratnam held that the question of prior sanction needed to be considered at the time of trial, not at the time when a complaint is lodged – though it did note that in certain circumstances it would be appropriate to require sanction earlier than the trial as well.

At the very least, when a case involves allegations of cheating, fabrication of records, or misappropriation, sanction only becomes important at the time of the trial, according to this decision of the Supreme Court. For the Rajasthan ordinance to blanketly require prior sanction for investigations therefore falls foul of this decision – and the general principle of construing such provisions narrowly to prevent violation of Article 14.

It would therefore not be unreasonable to expect that the courts would strike down the ordinance as a whole for being unconstitutional.

An Unconstitutional Violation of Freedom of Speech

The other big problem with the ordinance is that it basically gags the press from reporting on any investigation into a judge or public servant. The ordinance does this in a two-step process.

First, the amendments to the CrPC include the following proviso:

Provided also that no one shall print or publish or publicize in any manner the name, address, photograph, family details, or any other particulars which may lead to disclosure of identity of a Judge or Magistrate or a public servant against whom any proceedings under this section is pending, until the sanction as aforesaid has been or deemed to have been issued.

Second, the ordinance adds a new section 228B to the Indian Penal Code (IPC) which says that anyone contravening this proviso can be punished with two years imprisonment and/or a fine.

This means that if a journalist has details about any scam by a sitting judge or a current corrupt public servant, they can’t inform the public about this. This is prior restraint upon speech, pure and simple, and unconstitutional.

As pointed out by lawyer and legal scholar Gautam Bhatia here, the Supreme Court in Brij Bhushan v State of Delhi, held that prior restraint upon speech is presumptively unconstitutional. An exception to this was set out in the Media Guidelines Case (Sahara v SEBI), for media statements that could prejudice a case pending in the courts.

The Rajasthan ordinance’s provisions restricting press reporting cannot claim the protection of this exception, as they apply to investigations as well – the exception only deals with actual cases in the courts. We should, therefore, be hopeful that the courts will strike at least this proviso in the ordinance down without question.

Questions Need to be Asked Even if Courts Strike Down Ordinance

As a result, it is clear that the ordinance is susceptible to challenge on several grounds. It can only be hoped that this is taken up in the Rajasthan High Court or the Supreme Court at the earliest to ensure this grossly inappropriate piece of legislation is invalidated as soon as possible.

However, even if the courts do the needful and dispose of this soon, the Rajasthan government has a lot to answer for. It is clear that the ordinance sought to prevent investigations into public servants. It is also clear that the ordinance was an attempt to muzzle press freedom.

Why did the Vasundhara Raje government think this was necessary? Why now – is there something in particular they don’t want investigated, or were they expecting something to come up in the next six months? Does this have anything to do with the Rajasthan assembly elections next year? Why bypass the Rajasthan assembly by doing this as an ordinance?

Rajendra Rathore, Rajasthan’s parliamentary affairs minister, told NDTV that the reason for bringing this ordinance was the high number of “false allegations against public servants to demoralise them.” According to him: “People were filing false cases against public servants and that is the reason we have brought this law.”

It’s a shame that because of this amendment, we won’t be able to know the truth of those allegations at all. Needless to say, there will be many questions for Mr Rathore and the Chief Minister to answer.