On the face of it, the ordinance promulgated by the Rajasthan’s Bharatiya Janata Party government on September 7 giving judges and public servants immunity from preliminary inquiries into complaints of corruption without explicit permission seems to violate Supreme Court judgements on corruption in high office.

The ordinance, which amended Section 156 of the Code of Criminal Procedure, makes it necessary for a sanctioning authority to give permission for inquiries to be launched against current and former judges and public servants.

An ordinance is a legal instrument used to pass temporary laws when the Assembly is not in session. To become a permanent law, the ordinance must be tabled in the Assembly within six months and cleared. Rajasthan’s ordinance is expected to be placed before the Assembly on Monday.

The ordinance also bars the media from reporting on such allegations in a way that would reveal the identity of the people against whom charges have been made, effectively making it impossible for publications to follow up such cases. Contravening this provision will attract jail time of two years and fine.

Since this is an amendment to a Central law by a state government, the fact that it received the governor’s approval means it was cleared by the Union home ministry, which is a legal necessity in such cases.

Significantly, the definition of public servants under the Prevention of Corruption Act includes the chief minister and the rest of the Cabinet. This means Chief Minister Vasundhara Raje and her ministers will get immunity from preliminary investigations even if they lose power.

Violating Supreme Court orders

Apart from curtailing the media’s freedom of expression by making the publication of corruption allegations a criminal act, the ordinance also seem to contravene Supreme Court rulings.

Among these is the Supreme Court’s decision in 1997 in the Vineet Narain case, when it struck down what was known as the “single directive”, which had placed limitations on inquiries by the Central Bureau of Investigation into allegations against certain categories of civil servants.

In 2014, a Constitution bench of the Supreme Court struck down a similar provision in the Delhi Special Police Establishment Act. In 2003, Section 6-A was included in the Act, whereby investigations against officers of the rank of joint secretary and above would require the approval of the Central government. This was in essence a replication of the “single directive”. The provision was necessitated to synchronise the DSPE Act with Section 26 (c) of the Central Vigilance Commission Act, which also undertook such a classification.

In Subramaniam Swamy vs CBI, this provision was struck down as it violated Article 14 of the Constitution, which guarantees equality before law. In the judgement, the Supreme Court reasoned that the referred statues created an artificial classification of officers that was arbitrary in nature.

Since it violated a Constitutional provision, the Supreme Court did not go into other violations that the petitioners brought up, including how the provisions undermined the Prevention of Corruption Act by giving public servants immunity from preliminary investigations.

The court also refused to accept the argument that officers need such protection to avoid frivolous allegations and the resultant damage to image of the public servants.

However, the spirit of the judgement made it clear that preliminary investigations were an essential element in building a corruption case and were a crucial facet of fighting corruption in high places. The court said:

“The previous approval from the government necessarily required under Section 6-A would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Moreover, if the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable the CBI to gather relevant material. As a matter of fact, the CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government.

Even without an arbitrary classification, it could be construed with some confidence from the Supreme Court observation that any law that scuttles the independence of the investigation agencies to objectively verify allegations of corruption would undermine the Prevention of Corruption Act.

Negative interpretation

Essentially, the Rajashthan government has interpreted the Supreme Court order in a negative sense. When the court said there should be no preferential treatment for one set of officers, it did not mean that the state should offer that treatment across board. The observations should be read in a manner that it positively aids the Prevention of Corruption Act. This can only be done by removing all impediments to bringing out the truth about corruption in public service.

Media restrictions

The ordinance also restricts the media’s ability to pursue the public interest. Though it does not directly prohibit reporting on a scam, it says that publishing any material that could give away the identity of the public official would attract criminal proceedings. But cases like the 2G spectrum scandal have shown that media reporting on such allegations would be impossible without investigating the actions of individuals. Often, a corruption scam involves arbitrary decision making by a public authority. In the 2G case, it was the former Union Telecommunications Minister A Raja who was accused of enabling fraudulent allocations of the mobile spectrum for a bribe. How could a case like 2G be reported without any reference to the minister who is alleged to have abused his position?

This would apply to many other cases, going back to the Bofors scandal against former Prime Minister Rajiv Gandhi in the 1980s.

The ordinance tries to balance criticism of protection to corrupt public officials by including a clause that sanction for the case would be deemed given if no decision is made by the authorities within 180 days. But this may not help. The Rajasthan law gives the official crucial time to set in motion remedial actions to protect himself from the case. If even a preliminary investigation cannot be launched against an official for 180 days, there is every chance that evidence could be tampered with or completely destroyed. This totally undermines the very fundamentals of a graft investigation, where secrecy on part of the investigation agency is a crucial element to bring out all facets of the illegal act.

Opposition will be hampered

Significantly, the ordinance also hurts the Opposition and inhibits it in its duty of keeping the government in check. It is important for the BJP to image the effect if Opposition-ruled states adopt such a law. The party would be unable to get any media coverage for scandals it might unearth in states where it is not in power. An example would be the recent controversy over building of a steel flyover in Bengaluru, which the BJP used to pin down the Congress. Had this law been in place in Karnataka, the media would have found it impossible report on BJP’s allegations, which involved questions on the project clearance in which multiple public servants had been involved.

The BJP has defended the ordinance, stating that such provisions are in place in other states too, including Maharashtra, something that is under challenge in the Supreme Court. However, an illegal provision in force in one state does not justify it being adopted in another. By providing protection to corrupt officers and gagging the media from reporting the allegations, the Rajasthan government has committed the same error that the “single directive” did.