Petition Filed Before Rajasthan HC Challenging Ordinance Shielding Public Servants From Probe [Read Petition]

A Writ Petition has been filed before Rajasthan High Court, 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.

Promulgated on 7 September, the Ordinance provides a time limit of 180 days for the authorities to consider a sanction request. If no decision is taken within the time limit, the sanction would be deemed to have been provided. It also restricts media reporting by prohibiting disclosure of identity of the public servants, till such sanction is obtained.

The Petition, filed by one Mr. Bhagwat Gour through Advocates Ajay Kumar Jain and Aditya Jain, now claims that the Ordinance provides a large section of the society with a "license to commit crimes" and alleges violation of Articles 14, 19 and 21 of the Constitution of India. The Ordinance, he further submits, "creates a huge privilege class and thereby subverts the normal investigative process".

With regard to violation of Article 14, the Petition submits, "Impugned provision is wholly subversive of independent investigation of culpable bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and inefficient investigation. There will be confidentiality if the investigation is not insulated from political and bureaucratic control and influence because the approved is to be taken from the government.

The very nexus of criminal bureaucrat - Politian which is subverting the whole polity would be involved in granting or refusing prior approval before an investigation can be ordered by the Magistrate, so the Ordinance being arbitrarily unreasonable and also ultra vires of Article-14 of the Constitution of India."

Mr. Gour, further, makes reference to various judgments rendered by the Supreme Court in this regard, wherein it has been held that sanction is required only for the purpose of taking cognizance of the offence and not for initiation of the investigation.

Furthermore, he asserts that the Ordinance would hamper independent investigation, submitting, "... impugned provision is wholly subversive of independent investigation of culpable bureaucrats and strikes at the core of rule of law and the principles of independent, unhampered, unbiased and inefficient investigation. There will be confidentiality if the investigation is not insulated from political and bureaucratic control and influence because the approved is to be taken from the government. the very nexus of criminal bureaucrat - Politian which is subverting the whole polity would be involved in granting or refusing prior approval before an investigation can be ordered by the Magistrate..."

The Petition, thereafter, seeks setting aside of the Ordinance on the ground of it being "ultra vires, void and unconstitutional".