The menagerie in Animal Farm were cynically told one day: All animals are equal, but some animals are more equal than others.

The Indian Republic has had its Orwellian moments. It is not uncommon to hear the complaint that lawmakers are above the law in India. From gun-toting members of legislative assembly (MLAs) threatening toll-booth operators to actual allegations to criminal activities, violations of the law of the land don’t surprise anymore. But what is happening is Maharashtra is in a different class altogether.

Almost a month has passed since Maharashtra initiated amendments to sections 156(3) and 190 of the Code of Criminal Procedure, 1973 (CrPC). Section 156 deals with the power of a police officer to investigate a cognizable case; sub-section 3 of this part empowers a magistrate to order an investigation under this section. Section 190 empowers a magistrate to take cognizance of offences. Under the amendments moved in Maharashtra, police officers cannot register cases against members of the legislative assembly (MLAs) without the permission of the speaker of the assembly. Even worse, cases cannot be registered against civil servants without the permission of the chief secretary.

These changes are almost revolutionary: with the stroke of a pen an entire class of citizens has been put on a different standing before the law. An ordinary citizen has to face the law directly if he commits any criminal offence. A police officer requires no authorization to investigate a breach of the law. Police officers and magistrates now have to seek the permission of “competent authorities" before they can even begin investigating allegations of crimes by legislators and officers.

There is a practical side to the matter. Legislators and civil servants wield immense power by the nature of their work. The danger of abuse of power—very often criminal in nature—is greatly amplified for this class of people. There is sufficient evidence—in terms of criminal proceedings against many legislators and officers across the country—that this fear is very real. Giving legal protection to this class greatly increases the danger of greater criminality on their part.

At a broader level, this issue is linked with that of Parliamentary privilege. The Constitution gives a measure of privilege to legislators, as it should be in any civilized country. Article 105(3) of the Constitution allows these privileges to be defined by law from time to time (in case of members of Parliament). Article 194(3) does the same for MLAs. But these privileges have never been codified and this has been to the detriment of all citizens. In fact, undetermined privilege is another way for their extraordinary extension.

Among other privileges, legislators cannot be arrested without informing the Speaker of an assembly/Lok Sabha and the vice-president (in case of members of the Rajya Sabha). Similarly, legislators cannot be subjected to legal proceedings for any vote or for what they say in the legislature.

These freedoms are understandable and are necessary for the functioning of democracy. But what Maharashtra has done is something very different. The amendments to CrPC made there do not extend the functioning of democracy but pose a danger to it. By these changes it has extended legislative privilege to the point where legislators are now above the law.

One can, of course, argue that the Speaker of the assembly and the chief secretary are unlikely to abet criminal acts or even give protection to those indulging in such acts. That is a naïve view of matters. The fact is that legislators and civil servants, as a class, have their own corporate interests that are safeguarded with gusto. From determining their salaries to a variety of other privileges, these groups act in their own interest.

Sooner or later, these amendments will be subjected to judicial challenge. Not doing so will only give ideas to other legislatures in India to do what they please. The loser will be the citizen, now distinguished with the prefix “ordinary".

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