The Rajasthan government has come out with an ordinance which purportedly tries to protect public servants, including judges and magistrates, from prosecution from actions taken in the discharge of their duties as public servants. The media has been widely reporting this as an attempt to protect corrupt activities, but this discourse is leading people away from the actual mischief sought to be done.
Public servants, including judges, are protected from prosecution for actions in discharge of their duties by Section 197 of the Criminal Procedure Code (CrPC) which lays down that a prior sanction to prosecute shall be taken from the competent authority of the Central or state government, as the case may be. Judges are provided additional protection under the Judges Protection Act from civil or criminal action for actions or words spoken during discharge of their duties.
When in comes to charges of corruption, even the Prevention of Corruption Act provides for a mechanism of prior sanction for prosecution of public servants under the Act.
This makes one wonder about the necessity of the ordinance promulgated by the Rajasthan government. This is where one notices the mischief.
- The ordinance doesn’t merely protect public servants and judges, it declares an embargo on the free press from reporting about the accusations or probe till the time prior sanction to prosecute is not granted. As it provides a time period of 180 days for a decision to be taken for such sanctions, there’s effectively a six month gag on the media.
This strikes at the very root of journalistic freedom to report fairly and accurately, a freedom guaranteed by the Constitution as a fundamental right. Such a right to report fairly has been upheld by a catena of decisions of various constitutional courts.
The ordinance goes another step ahead and attempts to amend the Indian Penal Code (IPC) to make disclosure of identity of certain people against whom sanction is sought to be a cognizable but bailable offence punishable by imprisonment up to two years.
Such criminalisation of disclosure again hits at the very roots of journalistic freedoms and shall have a chilling effect on free speech.
This is still an ordinance, and as it attempts to amend Central laws it would require presidential assent. However, the threat to free speech is a clear and present danger.