Why Vasundhara Raje's ordinance assaults the very essence of democracy
The Rajasthan government wants to protect its ministers, babus, judges and magistrates from investigation for corruption for a layover period of six months. Ministers generally protect themselves by layers of indifference. No one resigns faced with debacle as Lal Bahadur Shastri did accepting responsibility for a railway accident in 1956.
Babus are protected by the Constitution and have security for tenure and no dismissal without due process. After investigation, public servants are protected from prosecution without sanction under the Criminal Procedure Code for discharge of official duties in office or after.
In the Prevention of Corruption Act (PCA), 1988, public servants have similar protections. Judges have their own protection. On November 15, 2017, the Bombay High Court refused to immunise a judge for corruption in office relating to his duties. But the point is, criminal prosecution cannot take place without special permission. But Rajasthan’s ordinance goes further.
Shelter from probe
The Rajasthan ordinance seeks to protect the minister, the babu, sub-babus and their co-conspirators from investigation (not just prosecution after investigation). The babu keeps inventing ways to protect themselves. The ministers go along because they are protected too.
In the Hawala case (1998), the Supreme Court struck down a similar provision of the central government called the Single Directive. All babus who were joint secretaries and above were given protection from investigation. Justice Verma’s judgment decisively struck down the Single Directive as an unwarranted protection — wholly unworthy.
The babus tried very hard to introduce this in the Bills on Central Vigilance Commission and Lokpal succeeding to the extent that class A and B employees were more favourably treated. Imagine the situations. Situation A: A babu or minister takes bribes. It is a pretty straight forward case of entrapment. Why should he not be investigated immediately? Why the delay of 180 days? Situation B: A babu or a minister is involved is a fully fledged scam. The scam spreads or is in danger of spreading. A complaint is filed. Rajasthan says no magistrate shall order an investigation for six months, leaving open all the possibilities to cover up, even flight.
So what if it is about the discharge of his official duties. Discharging duties illegally and criminally can never and should never be immunised. In many of these cases, custodial investigation is required. That will give way for further leads. There is no sense in an immunity period for investigation.
India is a nation riddled with corruption. The PCA was specifically enacted to tackle corruption at all levels. The term “public servant” (taken from other statutes by the Rajasthan ordinance) is defined in PCA to cover a contractor for fees, local officials, an arbitrator referred by the court or complaint authority, office bearers of corporate societies, vice-chancellors or teachers performing public functions and government or state’s cultural or other institutions. Rajasthan’s Bill says “public servant means as defined in any other law”.
Gagging free speech
The ordinance goes further to gag the press. During this period, Rajasthan’s rulers say “no one shall print or publish publicise... the name, address, photograph, family details of the judge, magistrate or public servant”. So, if a person is suspected of a crime, and there is no sanction for investigation, there is a blanket gagging on the press on not to publish or publicise it. A minister is under suspicion and there will be no Twitter, Facebook, or electronic publication.
If the provision is construed widely, you cannot talk to your neighbour about it because that is a publication, and certainly publicity. But matters do not end there. A new section 228B of IPC (applicable to Rajasthan) says that a person who indulges such publicity and publishing can be punished for simple or rigorous imprisonment for up to two years and also fined. The fine can be to any limit.
In former Prime Minister Rajiv Gandhi’s term (probably to offset criticism of Bofors, submarine and other scandals), a Defamation Bill 1998 was flaunted. There was a mighty campaign against it. It was like the infamous Bihar law. The campaign succeeded. The Bill was stopped by public opinion.
In the case of Rajasthan, there was a huge campaign. The Ordinance was denounced. There was criticism outside Rajasthan against the draconian proposal. The Ordinance continues. But a Bill was tabled before a select committee to examine it. What a ruse! But it has been side-stepped. On October 27, 2017, the Rajasthan high court issued a notice to the state government and the Centre on a petition by Sachin Pilot on the Ordinance’s un-constitutionality.
One step left
However, there is one more step after the bill is enacted (and I believe it should also apply for Ordinances). Since this is an amendment of a central legislation, the consent of the President (i.e. the central government) is required. The Governor has to reserve it for the President. Ideally, such legislation could be thrown in the dustbin by the President after it is reserved by the governor.
But the President and governor are partymen, and the President is advised in this regard by the Narendra Modi cabinet. But ministers of the Union government support Rajasthan’s measure. Perhaps, the central government would like a similar protection for the prime minister, ministers and other public servants. They have so much to hide. This is a measure to hide corruption, dilute standards of probity and assault the very essence of democracy.
(Courtesy of Mail Today)