PUCL seeks repeal of ordinance

PUCL seeks repeal of ordinance

Context:

The People’s Union for Civil Liberties (PUCL) on Saturday demanded repeal of a controversial ordinance promulgated by the Rajasthan government which has made public servants immune to investigation.

Introduction:

• Rajasthan government has passed an ordinance which seeks to protect both serving and former judges, magistrates and public servants in Rajasthan from being investigated for on-duty action without its prior sanction.
• The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 has been promulgated in this regard.
• The PUCL has decided to challenge the ordinance in the Rajasthan High Court.

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.
• No magistrate shall order an investigation nor will any investigation be conducted against a person, who is or was a judge or a magistrate or a public servant.
• The Ordinance made additions to section 156(3) and 190(1) of the Code of Criminal Procedure (CrPC) which empower a magistrate to take cognizance of an offence and order an investigation.
• Two years imprisonment will be awarded in case of violation.
• It provides 180 days immunity to officers as it has provision mentioning no magistrate can order an investigation nor will any investigation be conducted against person who is or was a judge or magistrate or public servant.

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.

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.