Public servants engaging in corrupt activities and using the law for punishing them for such conduct, are a serious matter in India. Since the start of the Republic, public servants abusing their official position has been a priority issue. Many commissions have come and gone, statutes have been replaced and updated, and if one was to read the news of any period over the last seventy-five years, all of this appears to have as big an effect as the ripples cast by dropping a stone in the ocean.
Hyperbole aside, the inability of legal remedies to curb corruption has become infamous. Commentators correctly point to general inefficiencies of the legal framework as contributing to the mess, a framework where trials take an eternity to conclude. This inefficacy is compounded by certain special features which are triggered whenever "public servants" are sought to be prosecuted. One such special feature is the need to secure prior sanction from the concerned administrative authority of the public servant before launching a prosecution against them.
Section 197 of the erstwhile Criminal Procedure Code 1973 [Cr.P.C.], or Section 218 of its indigenous doppleganger the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], provide this rule. The relevant part of it states that whenever a certain category of public servant is "accused of any offence to have been committed by him while acting or purporting to act in the discharge of his official duty (emphasis mine)" a prosecution can only be launched with the prior sanction from the administrative authority competent to remove such public servant from office.
The Judgment in Om Prakash Yadav
How do you draw this line to decide whether the accused public servant was acting or purporting to act in discharge of duty when they committed the offence? The words are acting or purporting to act, lending themselves to the idea that the line ought to be drawn conferring a broad protection to ensure that public servants are not troubled by frivolous litigation. But construe it true to this idea, and you run the risk of transforming public office into a carte blanche, which is unreasonable, and when squared with the political history of corruption in independent India becomes an absolute no-go. The result? A Sisyphean exercise for the Indian Supreme Court to try and confer upon the clause a reading which is fair to all interests.
The most recent and venerable example of this exercise is a decision in Om Prakash Yadav v. Niranjan Upadhyay & Ors. [2024 INSC 779]. The public servants here were police officials, and they were accused of having filed a false case with a motive not to corruptly ensnare an innocent soul, but to corruptly save a guilty one from being prosecuted. This soul, one Ashok Yadav, was accused of being party to a murder and was named as an accused in one case, but he was also named as an accused in a case of bootlegging having occurred barely an hour later but more than 150 km away. The victims in the murder case alleged foul-play by the police, arguing that there was no bootlegging case and it was only a ruse to give him a cast-iron alibi. The allegations of foul-play were found believable by the sessions court holding the murder trial, which refused to accept the alibi after considering the record.
The police officers were prosecuted for their illegal acts, but they challenged the proceedings against as being invalid because no prior sanction had been obtained. Despite the findings of the murder trial, the Allahabad High Court agreed with the public servants and closed the cases, prompting a challenge by the victims to the Supreme Court.
In Om Prakash Yadav the Court takes great pains to take one through the twists and turns of the judicial history on drawing the boundaries of the requirement of prior sanction (an exercise lasting nearly 25 pages!). This journey leads it to distilling its understanding of the legal position at Paragraph 65, with some additional principles at Paragraph 74. This attempt to simplify the past decisions by reducing it to a set of principles for future courts to tread the path with ease, reveals the Sisyphean nature of the task. There is not one real test, as we see, but many legal aspects for a court to consider while deciding whether sanction is truly required or not for prosecuting a public servant. Furthermore, the consideration of these aspects is so fact-dependent, that there in the vast majority of cases every side will pursue litigation to secure their positions. Which, in turn, will lead many of them back to the Supreme Court, for future judges to deal with the issue.
The Cart Before Horse Syndrome
An additional problem which Om Prakash Yadav throws up in sharp relief is what I would term the 'cart before horse' issue that has afflicted much legal wrangling over sanction. The argument is simple: can entering into conspiracies and committing offences ever be an act in the discharge of official duties? Of course not, and so insisting upon prior sanction for such acts is preposterous. This argument is placing the cart before the horse, because at the stage of seeking sanction, it is only alleged that the public servant had committed a crime. If this was to become the standard, then there would be no case where sanction should be sought, rendering it entirely redundant.
In distilling the set of principles at Paragraph 65, the Supreme Court is acutely aware of this fallacy, and cautions against it. But this is where the facts in Om Prakash Yadav enter the fray. Given that it already had a detailed analysis of the probable illegality of what the police owing to its treatment by the sessions court, Om Prakash Yadav was a bad case to apply this law by the Court. The idea of sanction is to serve as a prior safeguard at the start of a prosecution, when courts and administrative agencies do not have evidence from trials before them. Here, that basic concept stood inverted, giving courts evidence recorded during a trial which suggested that whatever the public servants had done was grossly illegal. Not only this, but it turned out that one of the police officers was not even posted at the police station where the case was lodged, suggesting that he was not acting in discharge of his official duties at all. To nevertheless turn around and protect these public servants from being prosecuted for harbouring a murder accused would be a startling outcome.
Perhaps owing to these facts, the Supreme Court could not refrain from lathering the 'cart before horse' analysis with a veneer of principle. Through Paragraphs 65 to 67, it states that if a public servant abuses or misuses office, then it disentitles them from any protection of sanction. More specifically evoking the facts of this case, it states that "when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no pat of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same." It is easy to arrive at such conclusions when a trial has been held concluding that the official lodged a false case, but in almost all other cases it would be an extremely contentious issue. Deciding whether public servants are entitled to sanction on whether they misused or abused office would cause many courts to commit that very error of giving too much importance to allegations to render sanction redundant.
Conclusion
The peculiar phrasing of the law provision, the conflicting interests at hand, and the highly fact-specific and particularised application of the legal rules in question ensure that litigation around issues of sanction will not end unless the law itself changes. Parties will keep travelling to court to secure their positions, and at different points of time in the trial as well, making sanction an issue which never loses relevance.
It may well be that the other parties in Om Prakash Yadav itself go back to the Supreme Court in the future. Because in its final analysis the Court has held that the on the basis of material before it, there was absolutely no need for sanction to prosecute one police officer. But for the other three officers, it held that the trial could yet result in evidence showing that their acts were in discharge of duties, and in that event the trial court could revisit its decision and hold that a sanction to prosecute them would be necessary. Like Sisyphus, then, the courts remain pitted against this rock, until the legislative gods intervene.
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