LAW RESOURCE INDIA

Don’t sit on sanction for prosecution in corruption cases, says Supreme Court

Posted in CONSTITUTION, JUDICIAL ACTIVISM, JUDICIARY, LEGISLATURE, SUPREME COURT by NNLRJ INDIA on February 1, 2012

Supreme Court of India

In a blow to every corrupt politician or bureaucrat shielded by the executive’s unwillingness to let them stand trial, the Supreme Court on Tuesday set a three-month deadline for governments to decide whether or not to grant sanction for prosecution under Section 19 of the Prevention of Corruption Act.

A Bench of Justices G.S. Singhvi and A.K. Ganguly was allowing a petition filed by Janata Party president Subramanian Swamy, who questioned the delay on the part of Prime Minister Manmohan Singh, the sanctioning authority, in granting sanction for prosecution of the former Telecom Minister, A. Raja, in the 2G spectrum allocation case.

The Bench gave two concurring judgments and held that Dr. Swamy had the locus standi to file a private complaint and seek sanction for prosecution. Justice Singhvi said: “Keeping in view the fact that the Special Judge, CBI, has already taken cognisance of the offences committed by Mr. A. Raja under the PC Act, we do not consider it necessary to give any other direction in the matter.”

Justice Singhvi held that had the Prime Minister been apprised of the true, factual and legal position on Dr. Swamy’s representation, he would surely have taken an appropriate decision and would not have allowed the matter to linger for more than one year.

Justice Ganguly said: “Delay in granting sanction has spoilt many a valid prosecution and is adversely viewed in [the] public mind that in the name of considering a prayer for sanction, protection is given to a corrupt public official as a quid pro quo for services rendered by the official in the past or maybe [to be rendered] in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.”

The Bench rejected Attorney-General G.E. Vahanvati’s argument that the question of grant of sanction for prosecution of a public servant charged with any of the offences enumerated under Section 19(1) would arise only when the court decided to take cognisance and any request made prior to that was premature.

Justice Singhvi, however, said: “At the same time, we deem it proper to observe that in future every competent authority shall take appropriate action on the representation made by a citizen for sanction of prosecution of a public servant strictly in accordance with the direction [of the Supreme Court] in [the case of] Vineet Narain vs Union of India and the guidelines framed by the Central Vigilance Commission. While considering the issue regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.”

Justice Ganguly said: “Parliament should consider the constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into it by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner.” Making it clear that the power under Section 19 must be reasonably exercised, he said “Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.”

The judge said: “Where consultation is required with the Attorney-General or the Solicitor-General or the Advocate-General of the State, as the case may be, and the same is not possible within the three months, an extension of one-month period may be allowed, but the request for consultation is to be sent in writing within the three months. A copy of the request will be sent to the prosecuting agency or the private complainant to intimate him about the extension of the time limit.”

At the end of the extended period, “if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.”

Several cases in which sanction was unduly delayed were quashed by the Supreme Court, the judge pointed out. “Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.”

Justice Ganguly said: “By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against [a] corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right.”

Justice Ganguly :

Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end.

 Corruption devalues human rights, chokes development and undermines justice, liberty,equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.

 Time and again this Court has expressed its dismay and shock at the ever growing tentacles of corruption in our society but even then situations have not improved much. [See Sanjiv Kumar v. State of Haryana & ors., (2005) 5 SCC 517; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319; Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property & another, (2001) 5 SCC 755; State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J. Jayalalitha v. Union of India & another, (1999) 5 SCC 138; Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394.]

 Learned Attorney General in the course of his submission fairly admitted before us that out of total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than 1/3rd cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining rule of law and common man’s faith in the justice delivering system.

 Both rule of law and equality before law are cardinal questions in our Constitutional Laws as also in International law and in this context the role of the judiciary is very vital. In his famous treatise on Administrative Law, Professor Wade while elaborating the concept of rule of law referred to the opinion of Lord Griffith’s which runs as follows:

 “the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

[See R. v. Horseferry Road Magistrates’ Court ex p. Bennett {1994) 1 AC 42 at 62]

I am in respectful agreement with the aforesaid principle. In this connection we might remind ourselves that courts while maintaining rule of law must structure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lord made a comparison between “the golden and straight metwand of law” as opposed to “the uncertain and crooked cord of discretion”.

The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315:

 “……It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness inthe society that certain acts are constituted offences and the right is given to any citizen to set the

machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) “punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi……”

 Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. 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 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. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the rule of law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds. I may hasten to add that this may not be factual position in this but the general demoralizing effect of such a popular perception is profound and pernicious. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.

 There are instances where as a result of delayed grant of sanction prosecutions under the P.C. Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others, (2002) 1 SCC 149, wherein this Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994) Supp.3 SCC 735, this Court quashed prosecution in a case where grant of sanction was unduly delayed. There are several such cases. The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.

 Article 14 must be construed as a guarantee against uncanalized and arbitrary power. Therefore, the absence of any time limit in granting sanction in Section 19 of the P.C. Act is not in consonance with the requirement of the due process of law which has been read into our Constitution by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India and Another, (1978) 1 SCC 248.

I may not be understood to have expressed any doubt about the constitutional validity of Section 19 of the P.C. Act, but in my judgment the power under Section 19 of the P.C. Act must be reasonably exercised. In my judgment the Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.

In my view, the Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:

a)All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.

b)Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

 c)At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow the appeal and the judgment of the High Court is set aside.

One Response

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  1. NNLRJ INDIA said, on February 3, 2012 at 18:27

    Reblogged this on LAW REPORTS INDIA.


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