New Delhi: As the nation debates whether the recent ordinance by the BJP government in Rajasthan, which grants immunity to public servants and magistrates from investigation for the work done in official capacity, is constitutionally valid or not, former Supreme Court judge Justice BN Srikrishna has said that the ordinance will not stand the test of law.
“The Rajasthan High Court will strike it down. This ordinance is contrarian to the freedom of speech and expression guaranteed under Article 19 of the Constitution. This law is not capable of being upheld at all,” Justice Srikrishna told News18.
Earlier on Monday, lawyer Ajay Jain filed a petition in the HC stating that the ordinance be struck down as being in violation of the Constitution.
Slamming the Rajasthan government, Justice Srikrishna, who currently heads a committee of experts to deliberate on data protection framework for the country, said that the ordinance made a mockery of the Right to Information.
The former SC judge said information has to be made public under the RTI and that the HC will strike it down for reasons more than one.
He said including judges into the ambit of the ordinance was ‘utter nonsense’ since there was already a law on it. “Independence of judiciary is one of the basic features of the Constitution. The Protection of Judges Act, 1985 looks into that area. According to the law, no judge will be liable for anything that they do in discharge of their judicial capacity,” he said.
It’s very rare that allegations are levelled against judges for the work done in official capacity. Justice Srikrishna said in such cases the famous Veeraswami Case would come to play.
In 1991, judgment was delivered in case of K Veeraswami, former chief justice of the Madras High Court, who in 1976 challenged an FIR filed by the then Chief Minister under the Prevention of Corruption Act on the ground that the Act did not apply to judges.
A five-judge bench of the SC ordered that the Chief Justice’s permission was mandatory for the filing of even a first information report (FIR) against any Judge of the High Courts and the Supreme Court.
“The SC has said that a judge can be prosecuted individually as long as the Chief Justice is kept in the loop to ensure that the judge is not being harassed,” Justice Srikrishna said.
Additionally, he added, it was very important to define ‘working in an official capacity’.
“A police officer is not expected to beat up an accused, or kill him. His role is to only probe and all this is not in his official capacity and he has to be answerable in law. Taking bribes is not a part of the duty of the government servant and that it cannot be said to be an exercise of duty within his jurisdiction. So the question that needs to be answered is what exactly is working in official capacity,” Justice Srikrishna said.
Justice Srikrishna, who had also headed the ‘Srikrishna Commission’ to inquire and report on the 1992-93 Bombay communal riots, said “this ordinance was indeed a backdoor approach of amending the Prevention of Corruption Act”.
“The whole idea of this ordinance is to ensure that a government servant is not exposed to action by a citizen, irrespective of what they have done or not done. Under the criminal procedure code and the Indian penal code, provision for prior sanction is there. Now, if there is an allegation of corruption against the chief secretary, etc, then the government can utilise these provisions. The government is expected to reasonably apply its mind and come to the conclusion whether to grant the sanction or not,” the former SC judge said.
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