Rajasthan ordinance: Are we going the banana republic way?

Vasundhara Raje government in Rajasthan, following the footsteps of the Devendra Fadnavis government of Maharashtra, has now provided legal protection against exposing and prosecuting the corrupt; the different organs of the state – executive, legislature and judiciary – do not have to worry now that their loot of the state exchequer would become public and would bring them infamy and a possible jail term.

Not that the corrupt executive had to worry about it much earlier; The state system was always been skewed in favour of the powerful; yes, there was a Prevention of Corruption Act supposed to keep the corrupt officials in the leash, but they had ensured to insert a Section 19(1) in the same Act that had given them protection against prosecution. It read: No court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority. Section 197 of the Criminal Procedure Code also reaffirmed similar protection extended to civil servants.

And, pray, who is the competent authority to give sanction? The respective governments. That provision shut the door on the prosecution of an overwhelmingly large number of corrupt officers, as the political executive refused to give sanction for the prosecution of the civil executive, as both were complicit in the loot of the taxpayers’ money.

What is then new in Rajasthan’s case now? Before we consider this, we must know what the BJP government did as soon as it came to power in Maharashtra.

Earlier, despite the mandatory requirement of the prior prosecution sanction – that provided a protective veil to the corrupt bureaucrats -- a private citizen or a watchdog body had the leeway to take the corrupt to task by approaching the Magistrate directly under the Sections 156(3) and 190 of the Code of Criminal Procedure (CrPC). These sections gave authority to the Magistrate to examine complaints against civil servants and, if satisfied, then getting those officials investigated and prosecuted.

The Fadnavis government, through an amendment to both the aforesaid sections of the CRPC, made it contingent on the Magistrate to seek prior sanction of the competent authority before taking cognizance of a private citizen or group’s complaint and issuing direction for investigation.

Earlier, only the aggrieved individual’s hands were tied; she could only move through the Magistrate; the Fadnavis government ensured that the Magistrate’s hands were also tied so that the political and civil executive could engage more freely in the corrupt deals without an accusing finger raised at them.

The Fadnavis government became a role model in devising ways of protecting corrupt politicians and bureaucrats from the long arm of the law; the Rajasthan government which has been besieged by a series of corruption allegations from its early days in office, decided to toe the Maharashtra line and extinguish the possibility of a corruption charge raising its ugly head altogether.

But, then, Vasundhara Raje is a taller leader than Devendra Fadnavis in the BJP pantheon. She could not just follow the latter’s lead; she had to enact a measure that would be a milestone by itself, that should be a reference benchmark for other BJP chief ministers to follow.

So Vasundhara government went a step further; it enacted an ordinance (to be replaced by an act soon) that carried out amendment to Sections 156(3) and 190 that not only gave immunity to the serving or retired civil servants from prosecution for corruption but also extended the same protective umbrella to serving or retired judges.

The judicial arm of the state was given both a carrot and a stick: a stick in as much as the judiciary was prevented from wielding the baton on its own, without the executive’s sanction; however, there was the carrot as well, an invitation to the judiciary to be complicit in the politician-bureaucrat corruption saga without any fear of prosecution.

But Vasundhara Raje, the tall leader that she is, did not just want to provide the protective veil for a politician-bureaucrat-judicial nexus; she wanted the last flicker of the threat of exposure of corrupt deals to be extinguished for ever. The only way she could do it was by gagging the media.

The ordinance then went on to amend Section 197 of the CrPC that details the procedure to be followed by the sanctioning authority. The amendment included the following alarming provision: “… no one shall print or publish or publicize in any manner the name, address, photographs, family details, or any other particulars which may lead to disclosure of identity of a Judge or Magistrate or a public servant against whom any proceedings under this section is pending, until the sanction as aforesaid has been or deemed to have been issued.”

In what is perhaps the biggest attack on the rights of the media in a democracy, the amendment went on to threaten the media of dire consequences if it displayed any free spirit: in a freshly inserted Section 228-B, the amendment said “Whoever contravenes the provisions… shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.”

Vasundhara Raje has clearly upped the ante. When Devendra Fadnavis tested the waters in 2015 by carrying out amendments to provide unqualified protection to the bureaucrats, there was a murmur of protest but he got away with massively denting the democratic fabric. The media then took it lying down.

Now that the media itself is under attack, will it continue to remain a passive witness to the fabric of democracy being torn apart?

The question is: Are we hurtling down the path of a banana republic?