Recently, in a public interest litigation (Manzoor Ali Khan v. Union of India, (2015) 2 SCC 33), a direction was sought from the Supreme Court declaring that Section 19 of the Prevention of Corruption Act, 1988, is unconstitutional. The petitioner, Manzoor Ali Khan, is a resident of Jammu and Kashmir and is a practicing advocate. His contention was that all cases registered and investigated under the provisions of PC Act against the politicians, M.L.As, M.Ps and Government officials should be prosecuted without obtaining sanction for prosecution as required under Section 19 of the Prevention of the Corruption Act. However, a 2-judge bench of the Supreme Court, comprising of Justice T.S. Thakur and Justice Adarsh Kumar Goel, refused to hold that the provision for sanction for prosecution in a corruption case is unconstitutional.
The petitioner cited several cases wherein many persons holding senior positions in Government were indicted even by the Supreme Court, but yet they could not be prosecuted due to want of sanction for prosecution. Some of these cases are:
(1) In Common Cause vs. Union of India, (1996) 6 SCC 593, Captain Satish Sharma, the then Minister for Petroleum and Natural Gas was held to have acted in arbitrary manner in allotting petrol pumps but since sanction was refused, he could not be prosecuted.
(2) In Shiv Sagar Tiwari vs. Union of India, (1996) 6 SCC 599, Smt. Shiela Kaul, the then Minister for Housing and Urban Development, Government of India was indicted for making arbitrary, mala fide and unconstitutional allotments but still she could not be prosecuted.
(3) In M.C. Mehta (Taj Corridor Scam) vs. Union of India, (2007) 1 SCC 110, Ms. Mayawati, the then Chief Minister of U.P. and Shri Nasimuddin Siddiqui, the then Minister for Environment, U.P. were indicted and allegations against them were noticed but they could not be prosecuted in the absence of sanction.
(4) It was also mentioned that in Prakash Singh Badal vs. State of Punjab, 2007 (1) SCC 1, Lalu Prasad @ Lalu Prasad Yadav vs. State of Bihar Thr. CBI(AHD) Patna, 2007 (1) SCC 49 and K. Karunakaran vs. State of Kerala, 2007 (1) SCC 59, validity of requirement of sanction was not gone into on the ground of absence of challenge to its validity.
(5) In Shivajirao Nilangekar Patil vs. Mahesh Madhav Gosavi, (1987) 1 SCC 227, the Supreme Court noticed that there was a steady decline of public standards and morals. It was necessary to cleanse public life even before cleaning the physical atmosphere. The provision for sanction under the PC Act confers unguided and arbitrary discretion on the Government to grant or not to grant sanction to prosecute corrupt and dishonest politicians, M.Ps, M.L.As and Government officials.
However, after considering the question as to whether Section 19 of the PC Act is unconstitutional, the Supreme Court held that this issue is not longer res integra. The Court held that:
“…Requirement of sanction has salutary object of protecting an innocent public servant against unwarranted and mala fide prosecution. Undoubtedly, there can be no tolerance to corruption which undermines core constitutional values of justice, equality, liberty and fraternity. At the same time, need to prosecute and punish the corrupt is no ground to deny protection to the honest. Mere possibility of abuse cannot be a ground to declare a provision, otherwise valid, to be unconstitutional. The exercise of power has to be regulated to effectuate the purpose of law. …”.
The Supreme Court referred to its observations in certain earlier cases decided by it, to hold that this issue has already been considered. These earlier cases referred to by the Court are:
- Vineet Narain vs. Union of India, (1996) 2 SCC 199.
- Vineet Narain vs. Union of India, (1998) 1 SCC 226.
- Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64.
These cases are important for the observations made therein for granting the sanction for prosecution in a time-bound manner (and, in the Subramanian Swamy case, it was held that the sanction can be sought even in a private complaint case). In the aforesaid Subramanian Swamy case, it was also held as under (para 74 of SCC):
“Keeping those principles in mind, as we must, if we look at Section 19 of the PC Act which bars a court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.”
In view of the above, the Supreme Court held that while it is not possible to hold that the requirement of sanction is unconstitutional, the competent authority has to take a decision on the issue of sanction expeditiously. A fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand.
The full judgment of the Supreme Court in the above case of Manzoor Ali Khan v. Union of India, (2015) 2 SCC 33, can be seen online here.
It is submitted that in addition to what is mentioned in the aforesaid judgment of the Supreme Court, following observations made in previous judgments of the Supreme Court are also relevant.
In the case of S.A. Venkataraman v. State, AIR 1958 SC 107 at p. 110: 1958 SCR 1040 : 1958 Cri LJ 254, the Supreme Court held that in enacting a law, prohibiting the taking of cognizance of an offence by a Court, unless certain conditions were complied with, the legislature did not purport to condone the offence. It was primarily concerned to see that prosecution for offences in cases covered by the prohibition shall not commence without complying with the conditions contained therein, such as a previous sanction of a competent authority in the case of a public servant, and in other cases with the consent of the authority or the party interested in the prosecution or aggrieved by the offence. There can be little doubt that in the case of a public servant the Central Government or the State Government or the authority competent to remove him from service is vitally interested in the matter of his prosecution. Such authority is directly concerned in the matter as it has to decide whether to accord or not to accord its sanction for the prosecution of one of its servants. The authority concerned may refuse to accord such sanction on the ground that the prosecution is frivolous or vexatious or on the ground that in the public interest it would be inexpedient to do so. Without some safeguard of this kind a public servant may find it impossible to carry on his official duties efficiently.
In the case of P.V. Narasimha Rao v. State, (CBI/SPE), AIR 1998 SC 2120 at p. 2164 : 1998 Cri LJ 2930 : (1998) 4 SCC 626 [Per Agarwal and Anand, JJ.], it was held that the requirement of sanction under Section 19(1) of the Act of 1988 is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous allegations by interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant.
In the case of C.R. Bansi v. State of Maharashtra, AIR 1971 SC 786 at p. 789): (1970) 3 SCC 537: 1971 SCC (Cri) 143: 1971 Cri LJ 662: (1971) 3 SCR 236, the Supreme Court held that the policy underlying Section 6, and similar sections, is that there should not be unnecessary harassment of public servants.
In the case of R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684 at p. 694 : 1984 Cri LJ 613 : (1984) 2 SCC 183 : 1984 SCC (Cri) 172, a Constitution bench of the Supreme Court, relying upon the aforesaid judgment of C.R. Bansi held that the object underlying the provision for sanction was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant.
In Raghubir Singh v. State of Haryana, AIR 1974 SC 1516 at p. 1519 : (1974) 3 SCR 799: 1974 Cri LJ 1062: (1974) 4 SCC 560, the Supreme Court held that provision for sanction before prosecution of a public servant should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of officials whose upright discharge of duties may provoke unpleasantness and hostility.
[Note: Some of the contents in this article has been taken from the author’s book: Prevention of Corruption Act by Dr. Ashok Dhamija, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]
Dr. Ashok Dhamija, Nice and informative Article.