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Simply put: The purpose of, and questions over Rajasthan’s gag-shield Bill

The Bill is amending the Criminal Procedure Code (CrPC) in its application to the state of Rajasthan. CrPC is a central law which specifies the process to be followed by authorities in criminal cases.

Updated: October 25, 2017 9:36:08 am
vasundhara raje, rajasthan ordinance, rajasthan criminal laws bill, vasundhar raje gag order, rajasthan assembly, kalyan singh, Congress, BJP, sachin Pilot, bjp, india news, indian express Rajasthan Congress chief Sachin Pilot and his party workers are detained while protesting the tabling of the Criminal Laws (Rajasthan Amendment) Bill, 2017, in the state Assembly in Jaipur on Monday. (PTI Photo)

Written by: Chakshu Roy & Jhalak Kakkar

On Monday, the Opposition in the Rajasthan Assembly protested strongly as the government tabled the Criminal Laws (Rajasthan Amendment) Bill to replace an Ordinance it had issued last month, under which prior sanction from an authority was required before an investigation into an offence committed by a public official could commence. On Tuesday, the Bill was referred to a committee of MLAs for detailed examination.

What is the Bill specifically doing?

The Bill is amending the Criminal Procedure Code (CrPC) in its application to the state of Rajasthan. CrPC is a central law which specifies the process to be followed by authorities in criminal cases. Under this law, the police are allowed to investigate cases where it is alleged that a crime has been committed by a judge, magistrate or a public servant, in the course of their official duties.The Rajasthan Bill requires prior permission to be obtained from an authority before an investigation can begin in the case of such public officials. Such permission is to be given or denied within six months — if no decision is taken in this time, it will be assumed that permission to investigate has been given, the Bill says. During the period of waiting for permission, publication of any information that may identify the public official is prohibited. The Bill penalises the violation of this provision with a jail term of up to two years and a fine.

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Why is the Rajasthan government bringing this Bill?

The government says it will protect honest officials from frivolous allegations levelled by vested interests, and thus prevent a situation of policy paralysis. The bar on reporting will deter false cases brought with the intention of maligning public officials, the government feels.

And what is the concept of prior sanction?

The basic idea is that public officials need to be protected from legal harassment for their official actions. But at what stage is prior sanction required — before beginning investigation, or before prosecution in court? At present, prior sanction is required before public officials can be prosecuted in courts. The CrPC provides that no court can take cognizance of an offence by a public official unless sanction has been given by the central or state government. The Prevention of Corruption Act also requires prior sanction for prosecution of public servants for offences such as taking a bribe or criminal misconduct.

The Rajasthan Bill introduces the requirement of prior sanction at the stage of investigation in addition to the stage of prosecution. This is not a new idea. A Bill that is pending in Parliament since 2013, seeks to amend the Prevention of Corruption Act to bring in prior sanction for investigation of public officials at the central and state levels. The Supreme Court held in the same year that police investigations against public servants cannot be ordered without prior sanction from the government. Interestingly, the Supreme Court in another judgment in 2014, observed that prior sanction for investigation could impede an unbiased and efficient investigation.

Three questions have been raised in the public debate on the provision of prior sanction in the Bill. First, whether this protection is necessary at both the investigation and prosecution stages. Second, since evidence of an alleged offence is collected through an investigation, how will an authority sanction investigation in the absence of evidence? And finally, the requirement of prior sanction at both the investigation and prosecution stages could result in delays.

Has any other state passed a similar law?

Yes. In 2016, a similar law came into force in Maharashtra. But this law differs from the Rajasthan Bill in two key respects. First, there is no prohibition from publishing information about public servants while sanction is being obtained for initiating investigation. Second, the maximum time in which sanction has to be given is three months as compared to the six months in the Rajasthan Bill. News reports suggest the Maharashtra law has been challenged in Bombay High Court.

So what happens to the Rajasthan Bill now?

On Tuesday, the Bill was referred to a select committee of the Vidhan Sabha for detailed scrutiny of its provisions. It has been reported that the committee will likely be headed by the Home Minister, who is also the Minister piloting the Bill. This is at variance with the procedure followed in Parliament — central Ministers are not part of parliamentary committees. After the committee of MLAs submits its report, the government will have to decide whether it wants to debate the Bill on the floor of the House and move for its passing.

Chakshu Roy is head of outreach at PRS Legislative Research, New Delhi. Jhalak Kakkar is programme manager with the outreach team at PRS Legislative Research, and is responsible for engagement with MPs.

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