Sanction for prosecution

The recent Criminal Laws (Rajasthan Amendment) Ordinance, 2017.
Ordinance protecting public servants
  • The Rajasthan ordinance making it a punishable offence to disclose the names of public servants facing allegations of corruption before the government grants formal sanction to prosecute them
  • It is a grave threat to media freedom and the public’s right to know
  • Section 228-B, the newly introduced(through the ordinance) Indian Penal Code offence that relates to acts done in the course of discharging official functions
  • It prescribe a two-year prison term for disclosing the identity of the public servants concerned
Other issues related to the ordinance
  • The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 restricts judicial magistrates from ordering an investigation without prior sanction
  • It may even paralyse an impending probe, as no investigating agency can approach a sanctioning authority without gathering any material
  • It is an additional shield for public servants who already enjoy the protection of Section 197 of the Code of Criminal Procedure, and Section 19 of the Prevention of Corruption Act, 1988
  • The sections make prior sanction mandatory before a court can take cognizance of a case
  • It may even paralyse an impending probe, as no investigating agency can approach a sanctioning authority without gathering any material
Other sanctions by Union and State governments, protecting public servants
  • The Union government, too, has a set of amendments to the Prevention of Corruption Act pending since 2013, including a proviso for prior sanction
  • Provisions barring investigation or prosecution without prior sanction are also in force in Maharashtra
The Supreme Court verdicts:
  • The SC verdict of May 2014 striking down a statutory provision for prior government clearance for a CBI probe against officials is very important
  • The court had observed that such a provision destroys the objective of anti-corruption legislation, blocks the truth from surfacing, thwarts independent investigation and forewarns corrupt officers
  • Anti-corruption legislation in India seems to be in a state of unacceptable flux
The way forward
  • It is time the Centre enforced a strong body of legislation that punishes the corrupt, protects the honest, and ensures time-bound public services and whistle-blower safety
What is Special Directive ?
Supreme Court ruling in a public interest litigation of 1997, which struck down the Single Directive of the Government of India that drew a distinction between officers of and above the rank of Joint Secretary and the rest of the bureaucracy. In the case of the former, the directive mandated prior Central government permission even to proceed with a PE while there was no such restriction with regard to those below the Joint Secretary. The 1997 ruling interpreted the Single Directive as discriminatory and violative of Article 14 of the Constitution that grants the right to equality before the law and equal protection of the laws to every citizen.
Protection to retired personnel
Protection against any recklessness or malice on the part of the CBI or State Vigilance or similar agencies is now sought to be given even to retired government employees through an amendment to the Prevention of Corruption Act (PCA), 1988 that has been approved by the Union government and is now pending before Parliament. (At present, a former public servant can be prosecuted for corruption without any sanction from the government.) 

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