Pradeep Gupta
Much controversy has been generated by the Ordinance promulgated by the Rajasthan Government last month prohibiting investigation into the conduct of judicial officers and public servants for any act done by them during the discharge of their duties unless such investigation is sanctioned by the Government. Under the new law, media cannot report on the accusations against a public servant until investigation is authorized by the government. Violators can be fined and jailed for up to a term of two years. This is seen as a restriction on free Speech and expression. It may also be in breach of the procedure laid down by the Apex court for investigating complaints of misconduct against judicial officers. Constitutional validity of the law appears to be questionable. A PIL has already been filed in the Rajasthan High court challenging its validity. To counter wide spread criticism from the legal fraternity and the media including the Editors Guild of India, the Rajasthan Government has tabled the Code of Criminal Procedure (Rajasthan Amendment) Bill in the legislative Assembly on 23rd October, 2017 to replace the Ordinance promulgated on 6th September. This is being done both as a legal requirement as well to convey that the law has popular support.
Criminal misconduct is exhaustively defined in the Central and State anti corruption laws viz. The Prevention of Corruption Act, Svt, 2006 and Chapter IX of the Ranbir Penal Code. There can be no two opinions that a public servant needs to be protected from frivolous complaints. Otherwise an honest person would not take decisions fearing malicious prosecution at the hands of mischievous persons. That would hamper execution of developmental activities and implementation of welfare programmes. Such protection, in fact, is already available under Section 6 of the Prevention of Corruption Act which provides that no court shall take cognizance of offences punishable under section 5 of the said Act and Chapter IX of the Ranbir Penal Code except with the previous sanction of the Government. Similarly Section 197 of the code of Criminal Procedure bars courts from taking cognizance of offences committed by public servants while acting in the discharge of their duties, except with the previous sanction of the Government.
These provisions in law have largely stood test of time and protected public servants from wrongful prosecution, although prosecution and convictions in the mega scams in the last one decade have sucked into their fold some bureaucrats of the proven integrity. Conviction of H.C Gupta former Coal Secretary in the coal scam case is one such example. Conviction of the accused officers was additionally based on the finding that their action of allocating coal blocks was not in “public interest”. The conviction in the case created quite a furore amongst the bureaucracy. The message, however, is clear that bonafide actions resulting from error of judgment cannot save a public servant if such actions results in pecuniary loss to the Government or undue gain to a private party. The initiative of the Rajasthan Government, may be well intentioned, is being seen as a ploy to protect the corrupt officials from investigation. The restraint on the Press is also perceived to be draconian. The law needs to be rolled back. Sooner the better.
While adequate protection from malicious prosecution is already available in law to the public servants, no such safe guard is available to the retired public servants who can be put to trial without sanction for prosecution from the Government. This is a lacuna as public servants after retirement are left unprotected when accused of offences alleged to have been committed during the discharge of their duties, while in service. Consequently many public servants stop taking decisions when at verge of retirement. There is a strong case for amending Section 6 of the Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure for extending the protection to the retired Public Servants as well.
(The author is former Divisional
Commissioner Jammu)
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