In India, criminal procedures are regulated by the Criminal Procedure Code, 1973 (“the Code”), and every court in India has to follow the due procedure mentioned in the Code. However, liberty has been given to each state government to make state-level amendments to regulate crimes in their respective jurisdictions.
New provisions that (a) bar magistrates from ordering enquiries u/s 156(3) of the Cr. PC against public servant(s) without prior state government sanction, and (b) bar publication of photograph, information or identity of judge, magistrate or public servant against whom any enquiry is sought to be ordered till the state government sanctions the enquiry – Provisions forced to be withdrawn due to public protests.
The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 was one such ordinance passed to change the application of Section 156 in the State of Rajasthan. The Ordinance proved to be controversial because it gave the government much more power over sections of the Code. The most controversial amendment made in the Ordinance was to Section 156 of the Code. The amendment stated that for a magistrate to pass an order under Section 156(3) against a public servant, previous sanction by the state government would be required. Only after receiving the sanction, an enquiry under Section 156(3) could commence against the said public servant. That wasn’t all. It was further amended to provide that no person shall publish or print a photograph or information or identity of the judge, magistrate or public servant against whom the enquiry is sought to be made under Section 156(3) unless such enquiry is sanctioned by the state government. Similar amendments were made to powers of magistrates under Section 190.
This ordinance was met with wide criticism. It was criticized mainly on the ground that in terms of jurisprudence, there is no reason why a Court should be barred from ordering a police investigation under Section 156(3) without prior sanction, particularly when the police can register a FIR and begin an investigation without waiting for sanction. The provision, it was argued, represented unnecessary interference of the government in judicial proceedings of Courts. The government defended their stand on the ground that honest public servants should not be punished for acts taken in the course of their official duties. The provision of penalty at the time of cognizance, rather than at some earlier date, the Government stated, protected and balanced both the complainant's and the accused public servant's interests.
The second issue on which there was a strong backlash was the restriction put on media and press of not disclosing any information relating to the case before the enquiry is sanctioned. In every truly democratic society, open justice must always be the law, and secrecy must be the exception. The right to an open trial is inextricably linked to the right to a fair trial. It also stems from Article 19(1)(a)'s right to knowledge for the general public. Apart from exercising its own right to freedom of speech under Article 19(1)(a), the media serves a broader public function by promoting the transmission of information that would otherwise be unavailable or difficult to obtain. As a result, by covering court cases, the media can fulfill the public's right to know how the courts operate.
By curbing the right of the media to publish reports on enquiries, it was argued that they created a barrier between the people and their right to information. The chief of the Editor’s Guild heavily criticized the state government and even alleged that the amendment was introduced only to harass the media. He said that it prevented the media from reporting on allegations against public servants, judges, and magistrates without the government's approval. The Editors Guild said in a statement that the ordinance is a "pernicious tool" used to intimidate journalists. “The state government passed an ordinance last month ostensibly to shield the judiciary and the bureaucracy from false FIRs. But in practice, it is a pernicious instrument used to bully the media, conceal government officials' wrongdoings, and severely curtail the freedom of the press guaranteed by the Indian Constitution,” it said.
The new provisions proved to be so controversial that the Ordinance,which was valid for six weeks, was allowed to lapse in December, 2017. The Bill introduced as the Criminal Law (Rajasthan Amendment) Bill, 2017 was taken back in 2018. This is an example of how the arms of government tend towards totalitarianism, but the strong roots of democracy often ensure that unreasonable provisions are taken off the statute-books.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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