The Rajasthan High Court, on Friday, issued notices on a Petition challenging the Criminal Laws (Rajasthan Amendment) Ordinance, 2017, which makes it mandatory to obtain a Government sanction before investigating both serving and former Judges, Magistrates, and public servants for on-duty actions.
The notice was issued by a Bench comprising Justice Rastogi and Justice Maheshwari on a Petition filed by Rajasthan Pradesh Congress Committee President, Mr. Sachin Pilot.
The Petition, filed through Advocate Rishabh Sancheti, contends that the Ordinance effectively "draws an iron curtain on the workings of the government" and submits, "That there was neither any urgency, nor any expediency which required the Ordinance route to be taken. This is a clear case of bypassing the Assembly, to bring in a draconian law, which shakes the conscience of the people and their elected representatives."
Mr. Pilot asserts that the need for obtaining prior sanction before conducting an investigation "destroys the independent judicial mechanism" and "brings about a superiority of the Executive over the Judiciary". This position, he submits, is unconstitutional and violative of the doctrine of separation of powers.
The Petition questions the need for promulgation of such Ordinance, claiming that the existing laws are sufficient for protecting the reputation of public servants. It contends, "There are no feathers in the cap of public servants, more so the ones who have been alleged to have done a criminal offence; to enjoy a superior right to reputation or a better protection of their reputation, over any other citizen of the country. Casting any such differentiation impinges on the clause against discrimination, and the guarantee of equality fundamental to the Indian Constitution."
Mr. Pilot further submits that the position in this regard has been settled by the Supreme Court in the case of Subramaniam Swamy v. Dr. Manhoman Singh and Anr, (2012) 3 SCC 64, wherein the Court had upheld the right of a private citizen to initiate criminal action against a corrupt official. The Apex Court had then observed that this right of access, being a Constitutional right, "should not be burned with unreasonable fetters".
Relying on this judgment, the Petition contends, "The Supreme Court in the said case discussed in detail the need for quick and effective prosecution of corrupt officials. The Court decried delays caused due to sanctions and noted that in all situations time was of the essence and it was the duty of the executive to take quick action to ensure that the faith of the people in the rule of law remains content."
Violation of Article 19 of the Constitution has also been alleged, citing the restriction placed on media reporting by prohibiting disclosure of identity of the public servants, till such sanction is obtained. This, it said, would have a "chilling effect" on the right of free speech and expression.
Further, taking away the right of publication, it says, "is reflective of imperialistic and non-democratic government" and "harks back to era of an authoritarian regime where people were treated as subjects rather than citizens". It also contends that this provision has an extra territorial effect as any such publication outside the State of Rajasthan would also be criminally actionable.
The Petition, thereafter, prays for quashing of the Ordinance as being unconstitutional and arbitrary, as it invests the Executive with "unfettered power". Besides, it also seeks a provisional stay on the Ordinance during the pendency of the Petition.