Sanction for Prosecution
Introduction
Human rights violations by security force personnel and corruption scams by public servants keep on occurring in this country with regular frequency. An important reason why this continues to happen is an environment of impunity that has been built up over a period of time through a combination of legal provisions and tardy functioning of the criminal justice system. There are three ways in which the culture of impunity prevents the perpetrators of violations and scams from being brought to justice. One, every attempt is made to suppress the incidents from being brought to light. Two, once the offences cannot be hidden, they are not investigated properly. In fact, there are provisions in law that do not allow even inquiries to be done against public servants of certain ranks involved in corruption scams. Three, even if investigations succeed in establishing criminal responsibility, the perpetrators are not allowed to be prosecuted, tried and duly punished.
This paper does not discuss the culture of impunity in all its aspects. It focuses only on the third aspect- the one that does not allow prosecutions against public servants without sanction from the government. This subject received prominence in a judgement delivered by the Supreme Court in Dr. Subramanian Swamy’s case (To be referred as Subramanian Swamy’s case here-in-after) on January 31, 2012. The main points of this judgement will be analysed while discussing important issues relating to the subject.
Legal Position
Sanction to prosecute a public official is required under certain provisions of law, two of which are significant- Section 197 of the Criminal Procedure Code (Cr P C), 1973 and Section 19 of the Prevention of Corruption Act( P C A), 1988.
Section 197 Cr P C says that whenever a judge or magistrate or a public servant 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”, no court shall take cognizance of that offence without sanction from the concerned government. Sanction would be needed from the central or state government, depending on whether he was employed in connection with the affairs of the Union or a State at the time of the alleged commission of the offence. The Section further debars the court from taking cognizance of any offence alleged to have been committed by a member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty without sanction of the central government. If the Armed Forces Special Powers Act, 1958 is applicable to any disturbed area, it provides further protection by mandating that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”
Section 19 of the Prevention of Corruption Act (PCA), 1988, on the other hand, is different. It says that no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 of the PCA Act alleged to have been committed by a public servant, except with the previous sanction of the concerned government. It would be central or state government depending on whether the public servant is employed in connection with the affairs of the Union or a State and is not removable from his office “save by or with the sanction” of the central or state government. This Section is not applicable once the public servant has ceased to be employed in the post which the public servant is alleged to have abused or misused for corrupt motives and is no longer serving in connection with the affairs of the Union or a State. In 2008, the central government tried to extend impunity even to retired public servants by bringing them within the scope of Section 19 of the Prevention of Corruption Act, 1988 through an amendment. This attempt was made mainly to undo a judgement of the Supreme Court , where it held that section 19 of the PCA did not protect former public servants. Luckily, the amendment to the Act was not ratified by the Rajya Sabha even though it had been cleared hurriedly by the Lok Sabha.
The difference between Section 197 of the Code and Section 19 of the PCA is clear. Sanction contemplated in Section 197 Cr. P C is in respect of offences which the public servant is accused of having committed while he was acting or purporting to act in discharge of his duties. On the other hand, offences specified in Section 19 of the PCA, like giving or taking bribe, can by no stretch of imagination be linked to “acting or purporting to act in discharge of his official duty.” This is why the Supreme Court has maintained that “Section 197 of the Code and Section 19 of the Act operate in conceptually different fields.”
Meaning of Cognizance
Law mandates that no court shall take cognizance of the offence without sanction from the government, but nowhere does it state what the word “cognizance” means. One of the objections of the government to the petition filed by Mr. Subramanian Swamy was that his private complaint seeking sanction for prosecution was premature as the question of sanction should arise only when the court decided to take cognizance. The Supreme Court did not accept this argument as taking cognizance, according to them, meant taking judicial notice of an offence. The Court clarified that it was different from initiation of proceedings. Cognizance is taken at the initial stage when the magistrate applies mind to the facts mentioned in the complaint. At that stage, the court has to refer only to averments made in the complaint and is not required to analyse evidence. The court endorsed the guidelines that the CVC had issued in 2005.
As per these guidelines, the grant of sanction is an administrative and not a quasi judicial function. It is therefore not necessary in such cases for the competent authority to hear the version of the accused to decide whether prosecution sanction should be given or denied. The authority should not undertake an inquiry to judge the veracity of allegations made against the public servant nor should it ask the investigating agency to further investigate the matter. All that is required is to assess whether the facts placed before the competent authority disclose prima facie commission of an offence by the public servant. If it finds enough evidence then it has to accord sanction; otherwise it can refuse. But in both cases, according to the Court, the decision taken on the complaint of a citizen must be intimated to him.
Who can seek sanction for prosecution?
There has always been a presumption that only an investigating or a prosecuting agency can seek sanction to prosecute a public servant. The significance of Supreme Court’s judgement in Subramanian Swamy’s case lies in the clear enunciation of a private citizen’s right to seek sanction to prosecute a public servant who is accused of having committed an offence under the Prevention of Corruption Act, 1988. One of the main objections raised by the government in this case was that Subramanian Swamy had no locus standi to file his complaint as the CBI was already investigating the allegations. The Court rejected this argument on two grounds. One, there is no provision in law that debars a citizen from filing a complaint. Two, an offence harms not only an individual but the whole society. Every citizen, therefore, has a right to take an offender to court. The Court has linked the right of a citizen to file a complaint with his right to access the court to set criminal law into motion. This, according to the judgement, is a constitutional right, which cannot be “whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence…”
Rationale for Sanction
The idea that public servants should be provided protection from being prosecuted in courts of law is a part of the concept of sovereign immunity that we have adopted. The way the concept has developed, it has meant two things. One, the sovereign can do no wrong; and two, no suit can be instituted against it without its consent. While the first idea has more or less been discarded by us in law, the second has been persevered with, mainly because this provided the post independence rulers of this country a shield to protect themselves from being held accountable.
The rationale often cited by the government to keep these provisions in law is, however, different. According to government explanation, the idea is to protect the public servants from the threat and ignominy of malicious and vexatious prosecutions, so that they can take their decisions without fear of being victimised. There may be some truth in this contention, but it raises more questions than it answers. One, the IPC has sufficient provisions to penalise people making frivolous and false complaints. Two, section 170 Cr P C requires a case to be sent for judicial cognizance only when there is sufficient evidence. Three, Section 190 of the Code gives discretion to the court to refuse to take cognizance of the case, which does not have merit. The court can dismiss the complaint at the initial stage itself if it is false or frivolous. Four, what is it that the competent authority has to assess before deciding whether sanction should be accorded or not? According to the Vigilance Manual of the Central Vigilance Commission, the sanctioning authority must satisfy itself “whether the material placed before it discloses a prima facie case against the person sought to be prosecuted.” Now, who is more competent to decide whether evidence is sufficient to make out a prima facie case against the accused public servant- the prosecuting agency like the CBI or the concerned government department? The C V C’s Vigilance Manual says: “There are adequate internal controls within the CBI to ensure that a recommendation to prosecute is taken only after a very useful examination of all the facts and circumstances of the case.” In case this is so, why should it be necessary to seek sanction since the available evidence has already been weighed and assessed?
The Problem
There are two aspects of the problem. One is the denial of sanction and the other is the delay in giving it. Neither the website of CVC nor of the CBI gives information about the number of cases in which sanction was sought and the number in which it was denied. The entire process of decision making in such cases is marred by an element of arbitrariness and untrustworthiness. According to a report in the Hindu, the Union Ministry of Home Affairs has rejected in the past four years alone “at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir….. Thirty-one of the cases in which sanction was denied relate to rape, culpable homicide or murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal confinement. In not a single case, The Hindu found, had sanction been granted.” Committing crimes like rape is not an act done in exercise of powers conferred by the Act. Recently, the Supreme Court questioned the extent to which the army could claim blanket immunity under the AFSPA Act. “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a bench of Justices B S Chauhan and Swatanter Kumar remarked to Additional Solicitor General P P Malhotra, representing the Army. The Supreme Court’s observations raise a very pertinent question- why should there be any need for prosecution sanction in those offences which have no connection with the discharge of official duties? The need for prosecution sanction even in such cases and inordinate delay in obtaining sanction are considered by the CVC as specific bottlenecks in the effective functioning of the CBI. This results not only in impeding CBI’s functioning but also in providing impunity to the accused and thus defeating justice. The Supreme court in an earlier five bench judgement had warned of the dangers resulting from refusal to sanction prosecution where there was clear prima facie evidence of an offence having been committed by public servants. The case concerned two Ministers of Madhya Pradesh Government who were found guilty of corruption offences by the Lokayukta of the state. The Governor of the state accorded sanction for prosecution despite the state government’s refusal to do so. The High Court upheld the state government’s contention that the governor could not act contrary to the “aid and advice” of the council of ministers. In a judgement delivered on April 6, 2004, the Supreme Court quashed the orders of the High Court and upheld the right of the governor to give sanction to prosecute a minister charged with an offence. Writing for the Bench, Justice SN Variava had said “democracy itself will be at stake” if the government refused to accord sanction for prosecution against ministers in matters where prima facie a clear case for prosecution was made out. “It would then lead to a situation where people in power may break law with impunity safe in knowledge that they will not be prosecuted as the requisite sanction will not be granted.”
Powers to grant or deny sanction are being used by the government arbitrarily in many cases, mainly because the law does not prescribe any guidelines binding the authorities to decide the cases transparently and to give justification for denial of sanctions.
Most discussion on this issue has centered around the problem of delay in obtaining sanction from the government. The present website of the CBI does not indicate the number of cases pending sanction with government authorities. Sometime ago, this information was available and the data presented a somewhat dismal picture. On 31 August 2010, as many as 342 requests for sanction under the Prevention of Corruption Act (PC Act) were pending with various authorities of the central and state governments. Of these, 182 requests had been pending for more than three months, out of which 30 cases had crossed the 12-month mark. One was awaiting clearance for 22 months, nine for 18 months, and 12 for over 15 months. Out of 32 cases that were pending sanction under the “non PC Act”, 5 had been pending for more than 24 months. In the Subramanian Swamy case, the supplementary submissions made by the Attorney General of India before the Supreme Court contained a compilation of 126 cases pending for want of sanction for a period ranging from more than one year to a few months. According to a recent newspaper report, the CBI has listed 80 cases involving 167 officers which have been pending with the central government for over a decade. Of these, 71 are corruption cases in which sanction is required for prosecuting 147 senior officials.
The pendency continues unabated despite the judgements of the supreme Court and the guidelines framed by the CVC based on the judgements. The most famous is the judgement in what is popularly known as the Havala case. The judgement directed that sanctions for prosecution must be given within the maximum limit of three months. It was only in exceptional cases where consultation with the Attorney General became necessary that an additional one month might be allowed. This direction was repeated recently by the apex court in the Subramanaian Swamy case. The court has further mentioned that the prosecuting agency or the private complainant must be informed about the extension of the time limit if consultation with the Attorney or Solicitor General is being sought. If the government does not give its decision within the time limit, the sanction will be deemed to have been given. The Department Related Parliamentary Standing Committee of the Ministry went one step further and recommended that once the investigating agency came to the conclusion that prosecution was necessary and Director of Prosecution concurred, the necessary sanction must be given within 15 days. In case it is not given within that period, it should be treated as “deemed sanction” and the CBI should file a charge sheet in court.
In its judgement in Subramanian Swamy case, the Supreme Court stressed the importance of taking decisions about granting prosecution sanction in time. The Court observed that the delay in deciding sanctions “stultifies judicial scrutiny and determination of the allegations against corrupt official” and thus erodes “the legitimacy of the Judicial Institutions” and “deprives a citizen of his legitimate and fundamental right to get justice”. The court further said that Section 19 of the PCA, by being silent on time limit to decide sanction cases, has “virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.”
Concluding Remarks
The recent judgement of the Supreme Court in Subramanian Swamy case evoked considerable interest. It received a welcome response on two counts. One, the Court fixed a time limit within which sanctions for prosecution should be granted. Two, It affirmed a citizen’s right to seek sanction to prosecute public servants involved in corruption cases.
So far as the first point is concerned, this is not the first time that the apex court has said so. The judgement in Vineet Narain’s case in 1998 had laid down the same time limit The CVC as well as the Department of Personnel had issued guidelines reiterating the same. The Parliamentary Standing Committee of the Ministry of Personnel had even recommended a smaller time limit within which sanctions must be given. Thus there have been many judicial and other authoritative pronouncements directing the government to issue sanctions for prosecution in time, but they have not been complied with. The government has treated such directives with indifference, if not contempt, and the Court has not been able to do anything about it.
Regarding the second point, this judgement has affirmed a private citizen’s right to seek sanction to prosecute. However, one cannot be very optimistic about the outcome of this pronouncement, for the simple reason that an ordinary citizen will find it very difficult to dig out enough material to prove that there is prima facie evidence of a public servant’s commission of an offence under the PCA. The private complainant will have to go to the government to obtain sanction, which the government under existing law can always deny without assigning any reasons.
This brings us to our third point. The Supreme Court in its judgements has dealt with the problem of delay in according sanction to prosecute public servants and issued directions to set it right. However, it has never questioned the need to obtain sanctions and the government’s right to deny them. Virtually, the concept of sovereign immunity embedded in the legal provisions like Section 197 of the Cr P C or Section 19 of the PCA or in other provisions of the special security legislation has never been challenged or disputed in any judgement of the Supreme Court.
The impact of this culture of impunity has been twofold. One, it has promoted a climate which is conducive to violations of human rights of citizens, because the security force personnel or public servants are not deterred from wrong doing, safe in knowledge that sanction to prosecute them will not ordinarily be given. Two, it has undermined the rule of law and damaged the democratic fabric of society. The basis of this culture is the inequality in the application of laws. Though the government cites very laudable objective behind Section 19 of the Prevention of Corruption Act, 1988, the fact remains that this provision of law has been used more to protect corrupt than to shield honest public servants.
There is a definite need to earnestly review the entire working of the law relating to grant of sanction to prosecute. The review may include the possibility of discarding the provision altogether from the statute book, as the Lokpal and Lokayuktas Bill, 2011 attempted to do.
