On Monday, the Opposition in the Rajasthan Assembly protested
strongly as the government tabled the Criminal Laws (Rajasthan
Amendment) Bill to replace an Ordinance it had issued last month, under
which prior sanction from an authority was required before an
investigation into an offence committed by a public official could
commence. On Tuesday, the Bill was referred to a committee of MLAs for
What is the Bill specifically doing?
The Bill is amending the Criminal Procedure Code (CrPC) in its
application to the state of Rajasthan. CrPC is a central law which
specifies the process to be followed by authorities in criminal cases.
Under this law, the police are allowed to investigate cases where it is
alleged that a crime has been committed by a judge, magistrate or a
public servant, in the course of their official duties.The Rajasthan
Bill requires prior permission to be obtained from an authority before
an investigation can begin in the case of such public officials. Such
permission is to be given or denied within six months — if no decision
is taken in this time, it will be assumed that permission to investigate
has been given, the Bill says. During the period of waiting for
permission, publication of any information that may identify the public
official is prohibited. The Bill penalises the violation of this
provision with a jail term of up to two years and a fine.
Why is the Rajasthan government bringing this Bill?
The government says it will protect honest officials from frivolous
allegations levelled by vested interests, and thus prevent a situation
of policy paralysis. The bar on reporting will deter false cases brought
with the intention of maligning public officials, the government feels.
And what is the concept of prior sanction?
The basic idea is that public officials need to be protected from
legal harassment for their official actions. But at what stage is prior
sanction required — before beginning investigation, or before
prosecution in court? At present, prior sanction is required before
public officials can be prosecuted in courts. The CrPC provides that no
court can take cognizance of an offence by a public official unless
sanction has been given by the central or state government. The
Prevention of Corruption Act also requires prior sanction for
prosecution of public servants for offences such as taking a bribe or
The Rajasthan Bill introduces the requirement of prior sanction at
the stage of investigation in addition to the stage of prosecution. This
is not a new idea. A Bill that is pending in Parliament since 2013,
seeks to amend the Prevention of Corruption Act to bring in prior
sanction for investigation of public officials at the central and state
levels. The Supreme Court held in the same year that police
investigations against public servants cannot be ordered without prior
sanction from the government. Interestingly, the Supreme Court in
another judgment in 2014, observed that prior sanction for investigation
could impede an unbiased and efficient investigation.
Three questions have been raised in the public debate on the
provision of prior sanction in the Bill. First, whether this protection
is necessary at both the investigation and prosecution stages. Second,
since evidence of an alleged offence is collected through an
investigation, how will an authority sanction investigation in the
absence of evidence? And finally, the requirement of prior sanction at
both the investigation and prosecution stages could result in delays.
Has any other state passed a similar law?
Yes. In 2016, a similar law came into force in Maharashtra. But this
law differs from the Rajasthan Bill in two key respects. First, there is
no prohibition from publishing information about public servants while
sanction is being obtained for initiating investigation. Second, the
maximum time in which sanction has to be given is three months as
compared to the six months in the Rajasthan Bill. News reports suggest
the Maharashtra law has been challenged in Bombay High Court.
So what happens to the Rajasthan Bill now?
On Tuesday, the Bill was referred to a select committee of the Vidhan
Sabha for detailed scrutiny of its provisions. It has been reported
that the committee will likely be headed by the Home Minister, who is
also the Minister piloting the Bill. This is at variance with the
procedure followed in Parliament — central Ministers are not part of
parliamentary committees. After the committee of MLAs submits its
report, the government will have to decide whether it wants to debate
the Bill on the floor of the House and move for its passing.