By: Bhavishya Goswami*

INTRODUCTION

In a democratic society like India, public servants are granted multifaceted powers and responsibilities to enhance governance. However, public officials are still human beings inspired and motivated by their everyday surroundings and can make mistakes like ordinary citizens. Thus, public officials may misuse this power. To strike a balance between protecting the honest officers from frivolity and holding the corrupt officers accountable, the laws have incorporated Section 19 of the Prevention of Corruption Act (hereinafter, ‘PC Act’) and Section 197 of the Code of Criminal Procedure (hereinafter, ‘CrPC’) or Section 218 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter, ‘BNSS’), subject to multiple interpretations by Indian precedents.

There has always been a debate about whether officials receive special treatment, with opponents arguing that the unique nature of their work justifies it. The requirement of sanction has evolved significantly vis-à-vis the reasonable connection test and the misuse of the executive’s discretion in imposing sanctions. Additionally, there is a nuanced distinction between the sanctions under the BNSS and the PC Act, which exposes the tension between constitutional principles and judicial oversight.

SPECIAL PROTECTION OR UNEQUAL SHIELD: DISCRETION, EQUALITY, AND REASONABLE CONNECTION

Sections 217 of BNSS and 19 of the PC Act have been criticised for providing special treatment to public officials and protecting them from legal proceedings. This criticism rests on the argument that such dependence violates Article 14 of the Constitution. However, it has been clarified in multiple judgments, notably in Matajog Dobey v. H.C. Bhari, that it is a consequence of reasonable qualification. Public servants are fundamentally different from ordinary citizens in the nature of their work. Therefore, they have to be protected from harassment in the discharge of their official duties.

The government’s choice to grant the sanction to a public servant is discretionary. If the government gives sanction to prosecute one public servant but refuses to do so for another, it will not provide them with the liberty to get rid of its own sanction. However, this would affect only the accused, and the petitioner’s case regarding the sanction would stand still as before.

It is further clarified vis-à-vis the court’s role in sanction-related matters through the “reasonable connection test.” The test requires a valid connection between the impugned act and the official’s duty. Even if the impugned act exceeds the reasonable apprehension required for the discharge of duty, it will be immaterial at the stage of delivering sanction. This merit-based issue will be examined at a later stage during the trial, as held in Om Prakash Yadav vs Niranjan Kumar Upadhyay.

The decision to withhold sanctions lies exclusively with the government, and the court cannot interfere with this decision. Although the court has agreed on the vastness of this power, it has treated it as a distinctive function, upholding the separation of powers enshrined in the Constitution.

DETERMINING THE THRESHOLD: WHEN DOES A PUBLIC OFFICIAL’S ACT DEMAND SANCTION?

This question arises when the public official argues that the act was done by virtue of his office. In Hori Ram v. the Emperor, while interpreting Section 270 of the Government of India Act (pari materia to sec. 197 of CrPC), the test laid down was that the act must be “purporting to be done in execution of the duty” however, this test was considered narrow, as it does not take into consideration the possibility of situation where even wrongful acts can be closely connected to official duties. There are numerous cases where public officials have misused their powers to commit unlawful acts, and the application of this test would negate the requirement of sanction on the accused.

In the matter of Shreekantiah Ramayya Munipalli v. State of Bombay, Bose J. clarified that it is not the official’s duty to commit a crime, but that is not the test. The test is whether the act (even if wrongful) was done while performing official functions; thus, the sanction would be required.

After this clarification, the next question that arises is when the sanction is required- whether as soon as the complaint is lodged or on the basis of the allegations in the FIR. In the Sarjoo Prasad v. The King-Emperor, Sulaiman, J. clarified that the need for the sanction arises only when it is established that the act was purported to be done in the execution of the public official’s duty. Additionally, it was further clarified in the same case law that the establishment of this material fact can be at any stage of the proceedings, as the facts coming to light may reveal the official’s act and its connection while discharging the public duty, and then, the sanction becomes a necessity.

DELAY AND CHOICE: THE SANCTION BOTTLENECK IN PROSECUTION OF PUBLIC OFFICIALS

The courts have clarified that it’s not the judiciary’s duty to interfere in the sanction-giving process of the government and governor. However, a few judgments have explicitly called it out to be the cornerstone that thwarts the very valid purpose of a speedy trial, with the requirement to bring the culprit to book. In the Subramanian Swamy v. Manmohan Singh case, the courts opined that the delay in granting such sanctions has led to the dismissal of various valid prosecutions and provides unlawful protection to the corrupt public officials. Thereby, leading to the erosion of the legitimacy of the judicial institutions.

This assertion can be further strengthened by the absence of a time limit for accepting or denying sanctions. For instance, in Mahendra Lal Das vs. State of Bihar and Ors, prosecutions against a public official under the offences of the PC Act were quashed because the sanction was granted only after 13 years. The situation was reiterated in Santosh De v. Archna Guha and Ors, where the grant of sanction was unduly delayed. To resolve this, Section 217 of the BNSS ultimately prescribed a time limit of 120 days, beyond which sanction is deemed to have been granted.

NOT A MERE FORMALITY: THE LEGAL RIGOUR BEHIND GRANTING SANCTION

A Sanction is considered a solemn and sacrosanct act that protects the government servant against frivolous prosecution. Furthermore, “it is a weapon to discourage vexatious prosecution and is a shield for the innocent and naïve people”, as held in the case of CBI v. Ashok Aggarwal. Additionally, the power to grant a sanction cannot be delegated to any other person or authority to maintain coherence and judicial similarity until allocated by the governor itself.

Consideration of a sanction, either good in law or bad in law, is highly dependent on the material, such as FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record available to the competent authority for scrutiny. The burden of proving it lies on the prosecution. Even though the material provided is detailed, if it is incomplete and would not suffice, the sanction would be liable to be quashed.

Additionally, the quality of the sanction can be further held while examining the sanction order by the sanction committee when the sanction order is extremely comprehensive, and all the facts and circumstances of the case may be spelt out in the order. This type of sanction shows that the responsibility of granting a sanction is not merely a formality but an action of public interest, as opined in Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani.

RETIREMENT AND SANCTION: A DIVERGENCE BETWEEN THE PC ACT AND CRPC

If the public official was working and not retired when the offence took place, he/she cannot take the defence of the sanction under Section (hereinafter, ‘u/s’) 19 of the PC Act once they have retired. The court has the liberty to resume proceedings without a sanction since the accused is no longer in service. This is possible only when the court begins with formal cognisance after the retirement of the proceedings. The reasoning is that the provision is for the protection of the current public officials and not the retired ones.

However, the grant of sanction required for court proceedings u/s Section 218 of the BNSS applies to both retired officials as well as the working officials, as the text of Section 218 states “any person who is or was a public servant.” It is a settled norm that the sanction should arrive from the appropriate government; the state government cannot grant a sanction to a central government officer, and vice versa, as stated u/s 218 (1)(a) and 218 (1)(b) of the CrPC. This underlying difference is premised on the nature of offences covered u/s 19 of the PC Act and u/s 218 of the BNSS, wherein the PC Act is confined to offences involving corruption/bribery. In contrast, the BNSS covers any offence done “in discharge of official duty.”

The 41^st Law Commission Report recommended adding the word “was” u/s 218 of the BNSS. The Section observes that if a sanction were not required for the retired officials, it would defeat the simple protection intended by the law, and the people would just wait for the public official to retire before bringing complaints to harass or settle scores. Therefore, it would discourage the honest officers from acting fearlessly in complex and controversial situations.

CONCLUSION

The sanction is still a double-edged sword. It is imperative to shield honest and sincere officials, yet it remains vulnerable to misuse that can stall genuine accountability. The judicial precedents have worked effectively in narrowing down the scope as to when the sanction would be a necessity, at what stage, upholding the separation of powers, and clarified how a sanction would be good in law when all the facts and circumstances are examined. However, ambiguities remain regarding the discretionary delays in granting sanction, granting sanctions without scrutinising all material facts still challenge the efficacy of the sanction process. The need of the hour is clearer thresholds for “reasonable connection,” and stricter accountability. Only then can the provision serve its intended purpose of protecting bona fide public service and prosec

*Bhavishya Goswami is a 3rd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow and a member at Kautilya Society, RMLNLU.