Why Sanction Should Not Be Required To Prosecute a Public Servant

Chief Justice of India K G Balakrishnan has started a debate in the public domain when he stated that the requirement to seek sanction for prosecution (of public servant) was acting as a stumbling block that tended to weaken the natural course of certain legal probes. It also acts as a deterrent in the fight against corruption in India.

This requirement for sanction is part of The Prevention of Corruption Act under Section 19(1) which provides that “no court can take cognizance of” any of the more serious offences except “with the previous sanction of the authority that is competent to remove him from his office at the time when the offence was committed.”

This means that if you wish to prosecute a central minister, you need central government permission or to prosecute a Government Officer, you need the permission of the Government (because he can be removed only by the Government). And this is one of the major causes of corruption in government. We'll see the reasons for this a little later.

This is also true for a crime under the Indian Penal Code.  Section 197 of the Code of Criminal Procedure provides that no court can take cognizance of a case where a judge or magistrate or a public servant protected under the Indian constitution “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.” It further says that action can be taken only with the sanction of his employer.

The need for such a provision is justified by the argument that “it would discourage frivolous complaints and vexatious litigation against public servants.”

Perceived reasons to protect a public servant from prosecution

Over the years, however I think the perception of the public in general and me in particular is that such a provision is necessary for the following reasons:

1. If the “competent authority” gives permission for the prosecution then it also comes under the cloud of suspicion because the benefits of the corruption accrue to the entire chain of authority. Have we not heard the usual refrain, “the money goes right up to the top.” And top is where the competent authority resides.
2. Government is run essentially by the politicians (however much the bureaucracy might state otherwise). And no political party will allow itself to be perceived to be tainted. And hence will not permit prosecution of either the highly placed public servant or politician or their own party of affiliates.
3. It also becomes a great weapon to put people in place and settle old scores.
4. As Bacon said, “Power corrupts, and absolute power corrupts absolutely”. This is a good way to create a “sense of absolute power” in a democracy and ensure that you have the law to grant your tribe immunity to act with impunity. This results in the vicious circle of never-ending corruption in Indian politics.

Reasons why no sanction should be required to prosecute a public servant

The Government must ensure that these provisions of the law are removed, to help the fight against corruption in India, for the following reasons:

1. Law should be equal for all. Just because someone is a government employee or a politician, that is no reason to grant such a protection. Frivolous accusations are part of the human nature and one has to handle them in ways other than the one chosen by law. After all even the aam aadmi gets drawn into frivolous prosecutions at times.
2. Doctors are targets of frivolous accusations. So are husbands (dowry), men (rape) and many others. But having said that there are countless other instances where accusations are correct and upon prosecution the accused get punished. If protection against a “few” frivolous accusations is to create a law that depends on permissions, then you will need to create special bodies to give permissions alone.
3. What is the basis for giving or denying permission? If the basis is party affiliation, friendship or enmity then the charges leveled against the powers are correct. As the Chief Justice observed. “Even in instances where the investigating agencies have gathered substantial material to proceed against a person, the necessary sanction is not given on account of extraneous considerations.”
4. And if the basis is the merit of the case, then the moment you accept that, you are being a judge (how else can the competent authority decide the merit of the accusation) and in that case what happens to the judiciary?
5. Caesar’s wife has to above suspicion. If the government or the political class wants to have any “moral” authority to govern, then they have to allow the prosecution to happen without any ado – which means no permission should be required.
6. The quality of the governance is reduced by such provisions and provokes pessimism. Again to quote the honorable CJI, “Even when no money changes hands, the quality of governance suffers when decisions are made on account of other considerations related to political patronage, kinship or caste and linguistic identity.”
7. This kind of repeated actions on behalf of the government results in “the alarming fact that there is considerable tolerance of the same in our society.” This is a result of the growing skepticism within the general public that no action will be taken against the guilty because they belong to a given party, class, caste, religion etc and the end result is that it cripples the moral fiber of the society in the longer term.

Finally, in the end I am just not able to control myself and have one poser for the honorable Chief Justice as well, “How will the additional cases affect the growing number of backlog of cases and when will one be sure that the justice will happen in ones own lifetime?”

What are your views on the issue of the requirement of permission to prosecute a public servant?