Colonial Rajasthan: 

Colonial Rajasthan: 

Context:

Rajasthan’s legislative assembly was adjourned yesterday amidst an uproar caused by the government’s attempts to convert the “Criminal Laws (Rajasthan Amendment) Ordinance, 2017” into law.

Introduction:

• The ordinance was promulgated by the governor of Rajasthan last month, shields public servants from being investigated by the police on charges of corruption, unless the investigation is authorized by the government.
• The People’s Union for Civil Liberties (PUCL) recently demanded repeal of ordinance.
• The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 has been promulgated in this regard.

Key features of Ordinance:

• The ordinance, promulgated on September 6, attempts to silence the media and prevent the judiciary from exercising its function of setting the criminal law in motion.
• The ordinance bars the media from disclosing names of officials until prior sanction is granted for their prosecution.
• The ordinance amends the Criminal Code of Procedure, 1973 and also seeks curb on publishing and printing in any case the name, address, photographs , family details of the public servants.
• If a government official is accused of bribery in Rajasthan, the offence cannot even be investigated unless the government gives its approval.

Controversy:

• PUCL national vice-president Radha Kant Saxena said the amendments to the Criminal Procedure Code and Indian Penal Code brought the ordinance went against the Supreme Court’s ruling in Lalita Kumari’s case, in 2014.
• In its judgment, the Constitution Bench of apex court had held that an FIR has to be lodged and investigation initiated by the police officer on a complaint about a cognizable offence. In the cases of non-cognisable offences, the investigating officer is empowered to initiate a preliminary enquiry and seek the court’s direction to obtain sanction for prosecution.
• The ordinance also contains a peculiar provision which makes it an offence for any person to disclose the identity of a public servant against whom a complaint of corruption has been made until the government gives its sanction for launching an investigation.
• This provision, a throwback to colonial times, violates the most basic principles of the law of free speech.
• The ordinance imposes what is referred to in law as a “prior restraint” on the press. A prior restraint is a form of censorship which is imposed before, not after, something is published.

“Prior restraints:”

• Prior restraints have been held to be constitutionally valid by the Supreme Court of India.
• The Supreme Court in a previous judgement had  held that a prior restraint would be valid so long as it was designed to fall under the exceptions to free speech contained in Article 19(2) of the Constitution.
• If a prior restraint seeks to prevent, say, defamation or contempt of court from taking place, then it will be considered valid, since those are enumerated exceptions to the right to free speech under the Constitution.

Article 19(1):

• Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression.
• Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like.
• This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press.

Article 19(2): This article contains grounds on which reasonable restrictions can be imposed on Freedom of Speech and Expression.

Reasonable Restrictions

1. Sovereignty and Integrity of India
2. Security of State
3. Friendly relations with foreign states
4. Public Order
5. Morality or Decency
6. Contempt of court
7. Defamation
8. Incitement to an offence

Ordinance making powers of the executive in India:

Ordinance making powers of the President

• Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session.
• An Ordinance may relate to any subject that the Parliament has the power to legislate on.
• It has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists

The following limitations exist with regard to the Ordinance making power of the executive:

• Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
• Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action.
• Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.  They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.

Ordinance making powers of the Governor

• The Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.