Rajasthan ordinance is against free speech, say legal experts

Constitutional expert Shanti Bhushan said, “It is highly improper and should be quashed. What it means is politicians want to do corruption and do not want to be investigated.” Jurist and former Attorney General Soli Sorabjee said the “constitutionality” of the ordinance was “very doubtful”.

Written by G Ananthakrishnan | New Delhi | Updated: October 22, 2017 5:47 am
The Indian Express had on Saturday reported that the Vasundhara Raje government in Rajasthan was ready with a Bill to replace the ordinance.

Legal experts have questioned the Rajasthan ordinance that prohibits investigation without prior sanction against judicial officers and public servants, and said the restrictions it imposed on the media impinged on free speech.
The ordinance, promulgated last month, prohibits investigation without prior sanction against “a Judge or a Magistrate or a public servant” for any “act done by them while acting or purporting to act in the discharge of their official duties”. Under the new law, the media too cannot report on the accusation against such a person until the prosecution gets the go-ahead from the sanctioning authority, which may take up to six months. The Indian Express had on Saturday reported that the Vasundhara Raje government in Rajasthan was ready with a Bill to replace the ordinance.

Constitutional expert Shanti Bhushan said, “It is highly improper and should be quashed. What it means is politicians want to do corruption and do not want to be investigated.” Jurist and former Attorney General Soli Sorabjee said the “constitutionality” of the ordinance was “very doubtful”.

Law Commission Chairman Justice (retired) A P Shah wondered how the legislature could make any law for judges when the procedure for action against them have been clearly laid down by the Supreme Court.
“I have not seen the ordinance. But you have to keep certain things in mind. In the K Veeraswami vs Union of India judgment of 1991, the Supreme Court has already laid down that complaint against a judge of a high court or Supreme Court cannot be made without the permission of the Chief Justice of the HC or the Chief Justice of India. So I’m not sure if this will apply to judges of the higher judiciary. I don’t know what the ordinance seeks to achieve… Even to proceed against a magistrate, the investigative agency has to take permission from the Chief Justice of the state high court because the judge’s position is very different. Otherwise, (these officers) will be exposed to all sorts of complaints.”

On restrictions that the ordinance places on the media, Justice Shah said, “There is no such bar (on reporting against such officials) in the Veeraswami judgment. So it will have to be tested. This is a restriction on the free speech and expression. So whether it is reasonable…will have to be examined in the context of Article 19(2) (which imposes reasonable restrictions on fundamental right to freedom of speech and expression). He added that it might also lead to conflicts with Lokpal and Lokayukta Act.

Senior counsel Dushyant Dave said the ordinance was not just “an attempt to gag the media but also to prevent citizens from fighting corruption”.

In the Rajasthan Assembly session that starts on Monday, the government will bring in The Code of Criminal Procedure (Rajasthan Amendment) Bill to replace The Criminal Laws (Rajasthan Amendment) Ordinance, 2017, promulgated on September 6.

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