The plea under the Right to Information Act also questioned the delay in the release of information about the ordinance.
A petition filed under the Right to Information Act (RTI) has asked the Centre to clarify whether it had granted prior permission to the Rajasthan government to promulgate the Criminal Laws (Rajasthan Amendment) Ordinance, 2017.
The application, filed by lawyer activist Hemant Kumar with the prime minister’s office, comes as the state government continues to be in the eye of a storm following the tabling of The Criminal Laws (Rajasthan Amendment) Bill, 2017 in the state assembly. The bill has come in for strong protests from the opposition and criticism from legal experts, forcing the government on Tuesday to send the bill to a select committee for further consideration.
However, Union law minister Ravi Shankar Prasad has already said that the Bill was meant to prevent “motivated complaints.” The minister made it clear that the legislation had the backing of the Narendra Modi government.
The Bill amends the Criminal Code of Procedure (CrPC), 1973, and bars the media from naming a public servant until Rajasthan government sanctions the investigation.
Kumar has urged the PMO to reveal “the entire information regarding the approval or permission as granted by the central government, if any, to the Rajasthan government for the latter promulgation of Criminal Laws (Rajasthan Amendment) Ordinance, 2017” which had been promulgated by the governor of Rajasthan on September 6 this year.
RTI plea wants to know grounds on which Centre approved of Rajasthan ordinance
In his application, Kumar explained the reason for filing the plea, “Since the ordinance tends to amend both the CrPC and Indian Penal Code (IPC) albeit within the state of Rajasthan, hence prior approval of the Centre is necessary in spirit with Article 254(2) of our constitution. As a promulgated ordinance is also akin to a duly enacted law, though for a limited duration, hence before its promulgation by the governor, it must have been sent to the Centre by the Rajasthan government for seeking the former’s approval particularly as it tends to amend CrPC and IPC, both central legislations.”
In a separate note, Kumar said it was also necessary to examine in the present case if the Rajasthan government had received the “necessary sanction from the president of India as required under the relevant provisions of the constitution for promulgation of Criminal Laws (Rajasthan Amendment) Ordinance, 2017”.
Kumar also questioned the delay in the release of information about the ordinance. “Although this ordinance got promulgated by the governor of Rajasthan on September 6, 2017, it has come out in public domain only now, i.e., just a couple of days before the state assembly session is scheduled to commence from October 23,” Kumar said in the plea filed on October 21.
Was Rajasthan wary of the challenges to a similar law in Maharashtra?
Noting that “this delay of over a month and a half has raised many eyebrows”, he said, many have been left wondering how the reports on the ordinance took such a long time coming. “Was Vasundhara regime skeptical about its immediate challenge in the Rajasthan high court since around the time of its promulgation in September this year, Abha Singh, a noted advocate-activist of Mumbai had challenged a similar sort of law as enacted by state of Maharashtra before the Bombay high court?,” Kumar questioned.
Kumar also noted that Rajasthan might have taken the cue from Maharashtra while bringing the Bill. “It seems that Vasundhara dispensation might have borrowed the idea for promulgating such ordinance from Devendra Fadnavis-led BJP dispensation in Maharashtra which, in June, 2015, gave its nod to Code of Criminal Procedure (Maharashtra Amendment) Bill, 2015,” he said
Kumar said that after the Maharashtra assembly had passed the Bill, it was sent to the Centre and had received the nod from the the president in August 2016. Now, he said, the Act is in force in Maharashtra.
‘Rajasthan ordinance more draconian than Maharashtra law’
But there were some key differences in the approach of Maharashtra and Rajasthan in the matter, Kumar added. “Maharashtra had not promulgated any ordinance before tabling the Bill and ensuring its passage in the House as has been done by Rajasthan. Moreover, Maharashtra only amended the CrPC to a limited extent incorporating amendments in only Section(s) 156 and Secttion 190 in it by providing for prior requirement of necessary sanction from appropriate sanctioning authority in respect of public servants.
Another area of difference, he said, was that the term “judges” is not used in the Maharashtra amendment law but is in the Bill brought by Rajasthan.
“Also, a time limit of 90 days is prescribed in Maharashtra for the sanctioning authority to decide on granting sanction or otherwise unlike Rajasthan which has prescribed a period of 180 days for taking the decision,” Kumar added.
“Rajasthan has also gone far on the issue of ordering a gag on the media as the Maharashtra law had not imposed any such restrictions on media reporting. Moreover, unlike Rajasthan, which has incorporated a new section – Section 228B – for prescribing a maximum jail term of two years for anyone including media groups who via reporting or otherwise tend to disclose the identity of such errant public servant pending grant of sanction, the Maharashtra law had no such provision,” Kumar said.
Hence, he said, the Rajasthan law is much more draconian than what Maharashtra had proposed and enacted.
Rajasthan government, assembly sites have no details on ordinance
Kumar said a closer scrutiny of the official website of the Union home ministry had also revealed that the Centre, in May 2017, had cleared the CrPC (Rajasthan Amendment) Ordinance. But the official record of promulgation of this ordinance is not available on the official website of Rajasthan government or on the state assembly’s portal. “So amidst all this, can one speculate that the state of Rajasthan has rather got necessary sanction from the Centre for promulgation of CrPC (Rajasthan Amendment) Ordinance, 2017 perhaps on the lines of Maharashtra law,” he said, adding that he has also filed an RTI application with the president’s secretariat to learn if the proposal had received sanction from the Centre and on what grounds.