Rajasthan ordinance violates fundamental rights: Writ petition filed in HC

The ordinance seeks to protect serving and former judges, magistrates and public servants in the state from being investigated for on-duty action without the govt's prior sanction

A writ petition challenging a Rajasthan government ordinance to protect judges and bureaucrats from being investigated without its prior sanction as "arbitrary and mala fide" was filed in the Rajasthan High Court on Monday.

Filed in the Jaipur Bench of the high court by activist Bhagwat Gour, the petition, according to Gour's counsel A K Jain, contends that the Criminal Laws (Rajasthan Amendment) Ordinance, 2017, was "in contravention of fundamental rights as enshrined under Part-III of the Constitution of India".

The Rajasthan government on Monday tabled a Bill in the Assembly to replace the ordinance promulgated on September 7.

The ordinance seeks to protect serving and former judges, magistrates and public servants in the state from being investigated for on-duty action without its prior sanction.

It also bars the media from reporting on such accusations till the sanction to proceed with the probe is given by the government.

According to the counsel, the ordinance amends the provisions of sections 156 and 190 of the Code of Criminal Procedure (CrPC) and inserts Section 228-B in the Indian Penal Code (IPC).

While section 156 gives police officers the power to investigate a "cognisable case", Section 190 deals with cognisance of offences by magistrates.

He claimed that by inserting CrPC sections 156(3) and 190(1), protection from investigation for on-duty action has been extended to each and every public servant defined under any law -- panches, sarpanches, members or office-bearers of a cooperative society, MPs, MLAs, members of cooperation, and employees of universities.

He said that the ordinance was violative of Article 14 (equality before law), Article 19 (Freedom of Speech) and Article 21 (protection of life and personal liberty) of the Constitution.

He said that Section 156(3) of the CrPC is an outlet provided to a victim when his request for investigating a cognisable offence has not been paid heed by the police.

The magistrate orders an investigation under section 156 (3) of the CrPC.

The counsel said that taking away the power of a magistrate under CrPC Section 156(3) was "violative of the basic structure of the Constitution".

Under the amendment, no magistrate shall order enquiry or investigate a person who is and was a magistrate, judge or a public servant without the prior sanction of the authority.

In the amendment to the IPC, Section 228-B has been inserted which prevents the disclosure of the identity of certain public servants, he said.

A writ petition can be filed in the high court or the Supreme Court against violation of fundamental rights.