The Rajasthan government’s decision to promulgate an Ordinance that shields public servants, including judges and magistrates, has cleaved public opinion into two halves. On one side, obviously, are many, not all, public servants and bureaucrats who believe that protection of this sort is the bare minimum a state government can do to ensure no harm comes to the reputation and careers of government servants.

On the other hand is a vocal community of journalists, academics and Constitutional law experts who firmly, and quite rightly, believe that the Ordinance fails to meet the touchstone of constitutionality. That the second camp is quite justified is evident from a peep at the Ordinance, which rather boldly and sans legal validity, prohibits the media from reporting on the accusations or probe against public servants till the time the state government grants a sanction to prosecute the said public servant. Distressingly, it goes a step ahead and provides that the state government may take up to 180 days, otherwise, six months to grant a sanction for such prosecution.

Effectively, the Ordinance muzzles free press from reporting on the allegations of corruption for a period of six months. It also does a disservice to whistle-blowers and journalists by explicitly stating that those who disclose the identity of public servants against whom sanction is sought can face imprisonment for two years. Besides, one must not be remiss of the fact that the Ordinance is a bit of overkill. Section 197 of the Criminal Procedure Code states that prior sanction to prosecute public servants for action or omissions committed by them in the course of their duty should be taken from the competent authority, which will vary from the Central or the state government, depending on the post and designation of the bureaucrat.

What’s more, the Prevention of Corruption Act (PCA) also states that in case a party or person is levelling accusations against a babu, he will require prior sanction for prosecution from the competent authority. Given how well bureaucrats are protected from vexatious litigation in this country, it is perplexing that the Rajasthan government took such a momentous step of promulgating such an Ordinance. The answer is to be found in the state government’s response, which said that the provisions were included to protect ‘honest public servants acting in good faith’. Surely, one cannot fault them on the intent, but it is the execution that has been fallacious.

The undeniable overhang here is of former Coal Secretary HC Gupta, who was convicted of criminal conspiracy and cheating under the PCA for a two-year term. In its aftermath, the administrative top brass saw red and came out in full support of Gupta, arguing essentially that he was being made the scapegoat for the actions of the political executive. Irrespective of whether their arguments were meritorious or not, it is necessary to protect public servants from systemic failures and political excesses. However, the same cannot come about at the expense of letting corrupt babus go scot-free.