Sanction to Prosecute - The Judgment in Om Prakash Yadav

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.   

Sanction and PMLA

In Bhibu Prasad Acharya [Crl. Appeal Nos. 3414-16 of 2024, decided on 06.11.2024], the Supreme Court held that the provisions of Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.], and by extension of Section 218 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] apply to the Prevention of Money Laundering Act 2002 [PMLA]. 

The basis for this view was Sections 65 and 71 of PMLA — the first applies Cr.P.C. provisions to PMLA proceedings so long as they are not inconsistent, and the latter rules that in case of any inconsistency, the PMLA overrides. Nothing within the PMLA excluded application of sanction provisions, and so necessary effect had to be given to Section 197. It made sense as well, according to the Court, considering the object of Section 197 which was to ensure that public servants are afforded a measure of protection against legal proceedings of a vexatious character [Paras 6, 17-18]. In the facts of Bhibu Prasad Acharya, the Court held that prior sanction was required, and absence of such sanction rendered proceedings unsustainable.

Since then, there has been quite a buzz around this decision and its purported harm to the PMLA regime's enforcement as obtaining sanction is now made mandatory. News reports also suggest that the government may be mooting a challenge to a position which renders sanction mandatory.

Only, obtaining sanction is not made mandatory by Bhibu Prasad Acharya.

The decision holds that the clause regarding need for prior sanction applies with equal force to PMLA as it does to other laws. It does not, by any stretch, hold that obtaining sanction itself is necessary for all PMLA cases, because Section 197 Cr.P.C. and Section 218 BNSS do not say so. These provisions are not like other clauses which by their very text make the need for sanction mandatory in all cases, such as Section 19 of the Prevention of Corruption Act 1988.

What Section 197 Cr.P.C. / 218 BNSS do is pose a question — was the alleged offence committed by the public servant while acting in the discharge or purporting to act in the discharge of official duty. If yes, it needs prior sanction. But if not, there is no need for sanction. Each case turns on its own facts. 

The case-by-case determination involved in Section 197 naturally meant that in cases where sanction was not taken, aggrieved persons challenged the move, and required courts to consider the scope of the clause. It has led to a large, complicated, and often inconsistent body of law on what acts are within the scope of an official's public duty, when sanction can be challenged, what happens if governments sit pretty and do not pass sanction orders, and how deep the scrutiny while granting sanction should be. But at no point has that body of law held that sanction under Section 197 is a must.

All that Bhibu Prasad Acharya does, and it does so absolutely correctly, is to give natural effect to the text of the PMLA which does not contain any clause ousting the issue of sanction. Its result is not to render the need for sanction mandatory, but to open up a new avenue for litigation in these cases. The ball will be in the agency's court. Where it does not seek sanction, quite often public servants will challenge the move, as they do in other kinds of cases.  

Guest Post: Sanction to Prosecute under UAPA

(This is a guest post by Gokul K. Sunoj and Navaneeta Manu)

“While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford to sacrifice the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the altar of perceived peril to national security. The Siren Song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law.”

[From Mahesh Kariman Tirki and Ors. v. State of Maharashtra (2022)]

Prior sanction for prosecution is not an uncommon occurrence. Stricter or consequential penal laws have had the safeguard of a filter from State authorities to capture and exclude trivial prosecution. These positions have seen varying degrees of strictness across statute and case-law jurisprudence. Unsurprisingly so, the Unlawful Activities Prevention Act, 1967 (UAPA) – India’s anti-terror legislation - envisions something similar. Logically, one would expect that such stringent and unforgiving formats of prosecution will inevitably mean a more tightly wound filter of prior scrutiny. Yet, following suit of several ill-drafted provisions, the corresponding provision on prior sanction suffers a lack of clarity; ones that have gnawed at the Courts’ valuable hours, conflicting them with one another, and seeding disturbing fissures in case law jurisprudence.

This piece will briefly touch upon a history of sanction requirements in criminal / other legislations, their nature and degree of strictness and other details. It then explores the various case laws that tackled with the nature and strictness of sanction under UAPA. Attempting to smoothen the knots, we also promises a commentary on where a fair construal of the law should – ideally – land a compromise (or lack thereof) in the matter.

General History of the Requirement of Prior Sanction

Prior sanction to prosecute is most often encountered under Section 19 of the Prevention of Corruption Act 1988 (PCA) and under Section 197 of the Code of Criminal Procedure 1973 (CrPC). Decisions by the Supreme Court on Section 197 CrPC affirm that this clause is not a mandatory pre-condition to lodge a complaint [as against Section 17-A of the PCA]. A critical component seems to be that the authority granting sanction must apply its mind to the facts and circumstances of the case. Grant of sanction is not an idle formality and the sanction order must contain enough details to evince the application of mind. 

It is also relevant to note that the sanction-mandate section of the UAPA follows the same template as of Section 50 of the Prevention of Terrorism Act, 2002 and Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987. Examining judicial trends in those erstwhile provisions, in Adambhai Suleman Bhai Ajmeri and Ors. v. State of Gujarat (2011), the Supreme Court observed that in the absence of a proper application of mind on sanction, all subsequent proceedings are rendered invalid and without authority of law. This case refers to an earlier judgment, Rambhai Nathabhai Gadhvi v. State of Gujarat  (1997) (though declared per incuriam in Prakash Kumar v. State of Gujarat for reasons beyond the immediate scope of this article) which tested rigours of the sanction provision within TADA and stated “We must bear in mind that the sanction is not merely for the Designated Court to take cognizance of the offence, but for the prosecuting agency to approach the court for enabling it to take cognizance of the offence […]. Thus, a valid sanction is a sine qua non for a prosecuting agency to approach the court”.

Further, discussions in Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) show that the purpose of a sanction mandate is to guarantee an adequate application of the mind, and a mechanical sanction is defective in law.

With this framework in mind, the discussion that follows will trace a few cases specific to UAPA, while bifurcating into the procedural and merit-based sub-arguments that spin out from the very provisions themselves.

Sanction under UAPA

The UAPA enlists sanction requirements under Section 45, along with Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, 2008 (UAPR). Rule 4 [titled ‘Time limit for sanction of prosecution’], in particular, states that the Sanctioning authority: “shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority.” This seven day limit carves out a procedural-compliance issue – beyond the regular questions of requisite application of mind – not seen elsewhere, and will be dealt with first in this section. Then, validity on merits and content of the sanction will be touched upon.

A. Procedural Compliance

On first blush, both Section 45 and the UAPR use ‘shall’ – leaning towards a mandatory application [refer M. V. Wali Pero v. Fernadeo Lopez (1989)] of the stipulated seven day window. This was confirmed in State of Kerala v. Roopesh (2022) (hereinafter ‘Roopesh’) which stated that for a law that seeks to prosecute in such intensity as UAPA does, where gravity and consequences of punitive measure are significantly high, there may be no deviation whatsoever from the procedural requirements of the law.

At the same time, there is the Bombay High Court in Mahesh Kariman Tirki and Ors. v. State of Maharashtra (2022) (hereinafter ‘Mahesh’) (reversed by the Supreme Court as to the outcome), which seemed to hold the stipulated time limit to be directory in nature. Yet, it must be noted that it wasn’t diluted absolutely; rather, subjective importance was conferred. The judgment mentions that “Albeit directory, the time frame must be substantially complied with” and further that “[…] the effect of gross delay in submitting recommendatory report and according sanction may have to be accorded on a case-to-case basis […]”. The court, while referring to an interpretation of the word ‘shall’ by the Supreme Court in the context of another legislation with statutory time limits, noted that the mandate is not absolute and is subject to modifications on the basis of the consequences that may follow from such decision. The court asserts that the phrase has been implanted with an intention to generate a “sense of urgency”.

Use of the words “gross delay” and “case-to-case basis” would suggest that a reasonable lapse in compliance with time, the determination of which would be requisite a judicial application can cure such an irregularity. In other words, a lapse that the prosecution may be able to reasonably justify will not be considered a defect that vitiates the prosecution in its entirety.

It may be argued, that while Roopesh tends to show compliance with rigours of criminal law in questions of adverse sanctions, it may concurrently run the risk of going counterproductive to the State’s legitimate interest in guaranteeing safety and security to its people. It may be so that a genuine and more precise application of mind can churn out with a reasonable extension in the time window – without affecting the validity of the trial. And because this is hardly a matter germane to uniformity, a subjective assessment to test the reasonableness of action (or lack thereof) may always be advisable.

Disagreeing with Roopesh and aligning in reason with Mahesh, the Jharkhand High Court in Binod Kumar Ganjhu [WP No. 308 / 2022 decided on 30.11.2022] (‘Binod Kumar’) held that it is settled beyond debate that the word 'shall' need not always express mandatory rigour (para 24). That while the timeline may be construed as a "guideline" in the interests of "the liberty of the person", deviations may be permitted. The Court goes on to assert: "it has been held by the Hon'ble Supreme Court that the only principle which governs the criminal justice system is miscarriage of justice."

Binod Kumar also derives on reasoning from the scheme of the CrPC to state that not every irregularity is fatal for a trial – so long as the fundamental rights of an accused are guaranteed. These rights are spelt out to be: "[that] of fair trial in which he has sufficient opportunity to defend himself by cross-examining the prosecution witnesses to bring out falsity in the prosecution case." Beyond that, the court deems, are matters of statutory rights which, in the Court’s opinion "would have no application in the cases of this nature because a criminal prosecution cannot be frustrated on mere technicalities."

A risk with such approach remains the ability of the State to delay sanction – thereby hindering commencement of prosecution – whilst holding the person in custody. One would fear that the lack of a quantification for the words ‘case-to-case’ analysis of a ‘gross delay’ leaves gaping loopholes for the State to exploit. An argument to this effect was raised before the Punjab & Haryana High Court in Manjeet Singh v. State of Punjab (2023) (Manjeet), where the court interpreted the statute to determine if delay in sanction can be held permitted. The colour of the UAPA, the Court ascertains, is clearly to provide procedural safeguards in a scheme of law that is created to curtail fundamental rights and freedoms as emanating from the Constitution. If one were to construe, therefore, that UAPA, and its operative rules are extensions of reasonable, there ought to be a tighter noose around any deviations. Manjeet recognises this necessity and holds that the seven day time limit is sacrosanct and not to be deviated from (para 23), concordant with the view projected in Roopesh. While, the Court refrains from commenting on the vitiation aspect of such a defect; it nevertheless granted interim bail in favour of the accused (para 40), for such reasons as discussed above.

Brief opinions on the issue were also made by the Bombay High Court recently in Surendra v. State of Maharashtra (2023) (Surendra). The Court articulates that the simple test Mahesh employed was to demonstrate (and find) if prejudice was caused as a direct consequence of the delay; without which, it seemed unreasonable to vitiate the trial. Thereby, Surendra leaves it to the trial court to determine if injustice was indeed meted out in light of the delay caused in the same (para 57).

B. Substantial merits

Unsurprisingly, the same cases discussed above also extend jurisprudence to the substantial requirements to be fulfilled. Mahesh was also concerned with the obscurement and blurring of certain, arguably, critical pieces of evidence in the report tabled for sanction before the competent authority. The court emphatically held that "after considering the report" the sanctioning authority must confer paramount importance to due application of mind. The report presented for obtaining sanction must not be a mere ‘communication’ but must be indicative of an independent review of the evidence gathered during the course of the investigation and the recommendation for prosecution arising therefrom.

Binod Kumar and Surendra saw similar contentions. The cases differentiate between non-application of mind and an absolute absence of sanction in itself. Any challenge on an alleged non-application of mind, in the opinion of courts, was to be done at trial. This, in a sense, follows the logical argument that a creature of a statute may be remedied, rectified or resorted to in procedures allowed within the statute primarily.

Conclusion

The dominant position seems to flow from some observations in Binod Kumar. The Court compared sanction jurisprudence under the PCA and held it incompatible in logic with the intent, nature and spirit of the UAPA. While the former was enacted to combat corruption, with the sanction requirement put in place to insulate public functionaries from bogus complaints, the latter was created to combat a matter of such scale that solicits stringent action from the state. The court used the "contextual evidence of seriousness" deduced from Sections 46 and 47 of the UAPA (which allow evidence collected through the interception of communications and bar of civil suits in any proceeding under the Act) to argue that the UAPA is essentially teethed to prosecute with strength. Section 45 requirements of sanction are a necessity to save ‘innocent persons’ from being prosecuted; however, "the negative covenant used under section 45 cannot be stretched too far to render the object behind enacting UAPA superfluous and nugatory."

The conflicting views surrounding the stringency of the mandate is one, like many provisions, that arises from the drafting of the statute. Short of amendments, the only solution is interpretation. We bat in favour of the overall approach adopted in Mahesh, while acknowledging the need for remedies as crafted by the Punjab & Haryana High Court in Manjeet. Courts must develop more clarity on what is 'gross delay' for the sanction requirement not to be rendered meaningless.

The Asthana Judgment and the Puzzle of Section 17-A, PC Act

A few weeks ago, a Single Judge Bench of the Delhi High Court dismissed the petitions filed by Mr. Rakesh Asthana and others, seeking to quash the criminal investigations initiated against them by registration of a First Information Report [FIR] under provisions of the Indian Penal Code 1860 [IPC] and the Prevention of Corruption Act 1988 [PC Act] [See, Devender Kumar v. CBI, WP (Crl.) 3247 of 2018, decided on 11.01.2019]. The allegations, briefly, were that the concerned officers were extorting the complainant into paying them huge sums of money to close investigations being run by the CBI. It took the complainant almost a year after the first alleged incident of extortion to register a complaint with the CBI, which then lodged an FIR against the concerned CBI officers. 

The Section 17-A Issue

The High Court judgment dismissing the petitions discusses several arguments, but the focal point of attack for the CBI officers was a lack of sanction under the new Section 17-A of the PC Act, that was inserted in 2018. This Blog has discussed Section 17-A in depth earlier, and for convenience the text of the provision is copied below (the judgment copies the incorrect provision, amazingly):

(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval [relevant authorities mentioned] 

... 

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: 

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. [Emphasis supplied]

Briefly, the point to be noted is that Section 17-A applies to investigations. This is different from the existing provisions in Indian law that require police to obtain sanction before prosecuting public servants.

The High Court's View on Section 17-A
In dismissing the petitions, the High Court naturally held that there was no need for prior sanction to register the FIR. How did it come this conclusion? The analysis is distilled in Paragraph 36 onwards, and I have shortened them to two broad points:

• One, Section 17-A is only designed to protect bona fide decisions. If the act is "ex-facie criminal or constitutes an offence" prior approval is unnecessary. The alleged acts — extortion and threatening persons — cannot be in "discharge of official functions or duties of the public servant" and so no sanction is needed. 
• Section 17-A is not attracted as this case involves "no recommendation or decision on record by a public servant in the discharge of his official functions" [Emphasis mine].

There is other rhetoric as well, on the lines of speedy investigations being in the best interests of all and that the law does not defer to personalities, but these are the broad legal reasons for the High Court's view. The first point is an old one and sourced from the existing law on sanction to prosecute, where the Supreme Court has restricted sought to eliminate any need for sanction where acts are per se a crime, such as entering into a conspiracy. The second point, though, is new, and an ingenious take on the text of Section 17-A PC Act. While the section mentions nothing about decisions "on record", the Court has introduced that to exclude this case from the need for sanction.

A Critique of the High Court View

The thrust of the Delhi High Court decision is to interpret Section 17-A as a safeguard for the good officer. In the words of the Court, the purpose of sanction "can be read to be only to provide protection to officers who discharge their official functions and / or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour." 

This approach has held the judiciary in good stead in cases involving sanction to prosecute officers for several decades, but is not without faults. The most natural one being that this involves placing the cart before the horse: the judiciary ends up judging whether the act was bona fide or not at the outset, whereas that job is for the sanctioning authority. 

This logical problem is greatly accentuated in the case of Section 17-A of the PC Act, which triggers at the stage of investigation itself. After all, this is the first step in the case, and it is impossible for the allegations to be concrete as the FIR is not the outcome of a thorough investigation. Moreover, the language of Section 17-A is very loose — it seeks to not only protect the decision, but also acts that are relatable to it. 

In focusing on a bona fide decision, is the judgment not giving a simple way out of Section 17-A sanction by telling us that complaints should be framed so as to avoid any mention of official decisions? It is impossible to apply the bona fide decision test with any sense of objectivity. If we keep going down this road, what Section 17-A will be reduced to is the judiciary vetting every FIR, in addition to the vetting by the executive branch that the provision originally contemplated.

This then brings me to the second point, of requiring decisions on be "on record" for Section 17-A to apply. As ingenious as the solution may be, the fact is that these words are not there in Section 17-A and thus amount to the court re-writing the statute. This re-writing is usually impermissible unless the law has a gap or a clear and obvious error. Both seem to not apply here, which make this ground a rather weak one.

Conclusion: The Puzzle of Section 17-A 

The Delhi High Court's decision in Devender Kumar offers one of the few judicial engagements of Section 17-A currently available and deserves to be discussed widely. At its heart, the Delhi High Court is driven by the idea that Section 17-A is driven to protect bona fide decisions in the same way as the existing law did. But in extending the protection of sanction from prosecution to investigation, it becomes very difficult for courts to actually figure out when decisions are good or bad. This makes it equally difficult to accept the High Court's view of the purpose behind Section 17-A. Rather, one would argue that the purpose is exactly to confer a blanket protection to public servants, except if they are caught red-handed. This is perhaps why the expedited sanction of three months is provided for as well. This blanket view will also take away the need for courts to review each case to decide if sanction is needed or not. It will be fascinating to see how different courts perceive the issue going forward, and also to see how many courts engage with the other ground of Devender Kumar of only applying Section 17-A to recorded decisions. 

No Swords, But an Absolute Shield: India’s Overbroad Judicial Immunity Against Corruption Prosecutions

(This post first appeared on the Global Anticorruption Blog) 

Over the past four decades, India’s “activist” higher judiciary (the state High Courts and the federal Supreme Court) has significantly altered the balance of power between branches of government. This has been done by liberalising the rules on who can petition the court for relief, as well as expanding the scope of the judicial relief that can be provided. Today it is entirely normal for the Court to take up the task of monitoring the execution of government policies as well as the progress of criminal investigations. But this expansion of judicial power has not been matched by a coequal expansion of oversight mechanisms to ensure that judicial power is not abused—a significant problem given the serious corruption problem in India’s courts (see also here). Certain problems with the court system have attracted the attention of both commentators and the Parliament, including the Chief Justice’s unfettered power to assign cases to different judges and the system for appointments and impeachment. Surprisingly, far less attention has been paid to another instance of no oversight over the judicial branch: the doctrine of judicial immunity. 

Across countries, judicial officers are conferred broad judicial immunity to allow courts to fearlessly perform their functions. Significantly though, in most countries this protection applies only to acts in furtherance of the “judicial function”; for acts outside that scope, judges are subject to the law just like ordinary citizens. Not so in India. In 1991, the Indian Supreme Court created a rule that no criminal investigation whatsoever could begin against a member of the higher judiciary without first “consulting” the Chief Justice of India (or, if allegations are against the Chief Justice, consulting with any other Supreme Court Justice). According to the Court, this rule was needed to protect judges from “frivolous prosecution and unnecessary harassment.” 

Such a broad judicial immunity rule makes no sense, either generally or in the Indian context. While it’s reasonable to prevent a judge from being prosecuted for how she decided a case, it makes no sense to protect her for having murdered somebody, or taking a bribe. Indeed, in addition to its other obvious problems, this broad judicial immunity rule creates serious difficulties for efforts to fight endemic judicial corruption in India. 

Most straightforwardly, the “consultation” requirement delays proper investigation of corrupt judicial officers, and may sometimes block investigations altogether. The most recent example came in December 2017, when the Chief Justice denied permission to investigate a judge of the Allahabad High Court for corruption, though the Chief Justice found the material sufficient to recommend the judge’s removal. By shielding officials in this fashion, the system engenders corruption by fostering a lack of transparency and accountability. Even if one accepts that investigative agencies can be manipulated to bring about frivolous cases in India, the law already protects public servants—including judges—from prosecutions for their official acts by imposing a need for administrative consent. The additional judicial immunity protections only burden the investigative process. 

In other contexts, the Indian Supreme Court has sharply criticised legal provisions that require consent of a higher official before proceeding with a prosecution, given the tendency of such a system to delay or derail corruption prosecutions. Yet the Court refused to recognise the potential for similar abuses in its own case. It’s also telling—and troubling—that India’s special judicial immunity rule applies only to higher court judges, not to trial court judges. One struggles to find a reason behind this limitation except for the status that the higher judiciary occupies. Again, the Court’s doublespeak while dealing with other branches of government and itself is striking: In 2014 the Court did not hesitate to nullify similar protections for senior bureaucrats, finding that a similar status-based classification was arbitrary. But when a petition concerning the judicial immunity came up last November, it was re-affirmed by the Court. 

The 1991 rule should be eliminated. Even if a complete rescission of the rule does not come to pass, at the very least some exclusions to the blanket rule are urgently needed. For instance, judicial immunity should not apply in cases where a judge is charged with taking bribes for exerting influence outside beyond her judicial role. India should take firm steps to remind its citizens and the world that merely donning the robe does not automatically render any individual above scrutiny. 

Amendments to the Prevention of Corruption Act: Prosecuting Public Servants

The previous posts on this Blog discussed two new additions brought by the 2018 amendments to the Prevention of Corruption Act, 1988 [PC Act], namely a standalone offence punishing bribe givers, and a foundational change in how corporations can be prosecuted on corruption charges. In this post, I discuss changes made by the amendments that affect the traditional concern of Indian anticorruption legislation: prosecuting corrupt public servants.

The Existing Regime

Before moving on to the changes, it is worthwhile to spend a minute on the existing regime. The PC Act carried two main provisions to combat corruption: Sections 7 and 13. To avoid getting entangled in the technicalities, let's take a simpler version of how they worked, focusing only on the more important parts. There was Section 13(1)(e), which punished public servants caught in possession of assets disproportionate to their income. And then there was the muddling overlap between Sections 7 and 13(1)(d). The former targeted public servants accepting / obtaining anything beyond their salary (cash / property etc.) to do their job. Section 13(1)(d) only targeted them obtaining things, by corrupt means or abusing their position as a public official. The differences, then, were two: (i) according to several court decisions, Section 13(1)(d) needed a demand by public servants, and (ii) Section 13(1)(d) did not need the illegal transaction to revolve around performance of public functions. Totally different from this conundrum was the problem of Section 13(1)(d)(iii), which courts read as not requiring any demand or public function. It was seen as a strict liability offence, whose requirements were met as long as the public servant got any "valuable thing or pecuniary advantage" for another person without any public interest. 

2018 Amendments to Substantive Law: The Text

Very little of that existing regime has been left in place by the 2018 amendments. Section 13(1)(d)(iii) no longer exists. The rest of Section 13(1)(d) has been merged with Section 7 to form one composite offence. The new Section 13 only carries two offences - the erstwhile Sections 13(1)(c) and 13(1)(e). Since the bulk of changes are codified in the new Section 7, let's focus on that:

Section 7. Any public servant who, - 

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of any public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or 

(b) [ditto], as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or by another public servant; or 

(c) performs or induces another perform to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 

shall be punishable, with imprisonment ... not less than three years but which may extend to seven years ... 

Explanation 1. - ... obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

...

Explanation 2. - ... (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a [public servant], obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant, or by using his personal influence over another public servant; or by any other corrupt or illegal means; ... 

I spoke earlier of overlaps between Sections 7 and 13(1)(d) in the PC Act. The legislature has chosen to resolve that issue by deleting half of Section 13(1)(d), and clubbing those parts with the scope of Section 7. This has been done through Explanation 2 to Section 7, which carries forward large chunks of the old Section 13(1)(d) PC Act. What, then, is the conduct prohibited by Section 7 after the amendments? It punishes three kinds of transactions between public servants and others involving an "undue advantage" changing hands / about to change hands:

• Section 7(a) requires that the exchange be accompanied by the public servant intending to perform / cause performance /forbear performance of a public duty either improperly or dishonestly, be it her duty or that of another public servant;      
• Section 7(b) requires that the exchange to be as reward for improper or dishonest performance / forbear performance of a public duty in the past by a public servant;
• Section 7(c) requires the improper or dishonest performance / forbearance of public duty, or inducing such conduct in another public servant, in anticipation or in consequence of accepting an undue advantage.

Substantive Amendments: Hits and Misses

The deletion of Section 13(1)(d)(iii) from the PC Act marks the end of a long saga of a fight between the bureaucracy and the government. Ever since 2010, when the Delhi High Court ruled that the offence did not require proof of any associated mental state, it became possible to prosecute public servants simply for making a bad decision. For instance, if an official in a Public Sector Bank grants a loan to X, who then defaults, technically the public servant obtained a valuable thing or pecuniary advantage for another person without any public interest. Although the Delhi High Court's decision incorporated safeguards against such a broad reading, the bureaucrats were not convinced, and had been lobbying for change. The 2018 amendments mark their victory.

Creating a broad corruption offence and reducing overlaps and resulting confusion between Sections 7 and 13(1)(d) is a good idea. But unfortunately, it suffers from poor execution, as the new Section 7 is still plagued by unnecessarily confusing text, as I illustrate below. 

• First, the confusion with 7(c). It targets two kinds of scenarios: (i) a public servant does her job dishonestly / improperly expecting to get an undue advantage for doing so, (ii) a public servant does her job dishonestly / improperly having accepted an undue advantage for doing so. Scenario (i) can easily be described as the public servant being rewarded for doing her job dishonestly / improperly - which is exactly what Section 7(b) targets. Scenario (ii) can be seen as a public servant intentionally accepting an undue advantage to do her job dishonestly / improperly - which is part of what Section 7(a) covers. Thus, arguably Section 7(c) is not really covering any extra ground. 
• Second, consider Explanation 1, which effectively says that the Section 7 offence is complete as long as a public servant gets an undue advantage, without a need for improper performance of duty. But we already knew this, since Section 7 uses the words improperly or dishonestly to describe the conduct of public servants. Why add an unnecessary explanation? 
• Lastly, consider Explanation 2(i), which makes explicit the links between the new Section 7 and the old Section 13(1)(d). Perhaps this is useful to make it clear to the police and courts that this offence also deals with what the old Section 13(1)(d) covered. But, this is simply not the case. Even though some language is carried forward, the old Section 13(1)(d) does not survive. I say this, because all that the old offence required was a public servant obtaining an undue advantage without any need to draw links between this transaction and the performance of a public duty. Basically, it criminalised a public servant extorting persons into giving bribes. But all three clauses in Section 7 hinge around the performance of a public duty, besides exchange of an undue advantage. Ultimately, Explanation 2(i) is unnecessary: since the means by which a public servant obtains the undue advantage are irrelevant for the offence, why talk about it?      

2018 Amendments to Procedural Law  

Section 19 of the PC Act creates a need for prior sanction to prosecute public servants on corruption charges; i.e., prior government approval before judicial proceedings can begin. This provision has a cousin in the general law on criminal procedure - Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.]. There used to be two points of difference between these provisions. First, Section 19 PC Act only applied to active public servants, while Section 197 Cr.P.C. covered both active and retired public servants. Second, Section 19 PC Act applied in almost all cases under that law, while Section 197 Cr.P.C. applied to all kinds of cases, but only if the allegations concerned acts / omissions of the public servant in discharge / purported discharge of official duties [for a discussion of the judicial treatment of this test, see here]. The 2018 amendments to Section 19 PC Act have eliminated the first distinction; now sanction to prosecute cases under the PC Act will also apply to public servants employed "at the time of commission of the alleged offence". Section 19 PC Act will now also carry different rules on sanction in cases that are not instituted by law enforcement, giving public servants more opportunities to stop proceedings at the outset. While the amendments codify Supreme Court directions for a 3 month time-limit on sanction, there is no rule that failure to comply with that limit will result in sanction being deemed to have been granted.      

Far more significant than this expansion, though, is the insertion of Section 17-A into the PC Act. This provides that investigations regarding "any recommendation made or decision taken by [a] public servant in discharge of his official functions or duties" also need prior government sanction. Thus, police cannot even start corruption investigations without prior approval, a process that can take up to three months, although there is an exception for cases where a public servant is caught red-handed while obtaining / accepting an undue advantage [Provisos to Section 17-A]. Note, though, that while Section 17-A applies to PC Act offences, its structure is akin to Section 197 Cr.P.C. - prior sanction is needed only if allegations concern any recommendation / decision in discharge of official functions or duties. 

Section 17-A And Sanction: Old Wine in New Bottles

While prior sanction for investigations are not as common as prior sanction for prosecution, there is a legacy of laws protecting public servants against investigations too. The most famous being Section 6-A of the Delhi Special Police Establishment Act, 1946 [DSPE], which only shielded senior bureaucrats in cases pursued by the CBI, and was struck down as unconstitutional in 2014 primarily because of this selectivity in scope. In the years since, there have been selective attempts to revive that protection, most recently in the State of Rajasthan. Section 17-A marks a re-introduction of such protections at the federal level, this time without any rank-based logic. Though one suspects that it will be more common for this protections to be claimed in allegations against senior bureaucrats who occupy decision-making roles.

Are such protections for public servants legal? The Supreme Court considered the constitutionality of Section 197 Cr.P.C. in 1956, when one Matajog Dobey argued that this violated the equal protection clause of Article 14. Why, Dobey argued, should public servants not be taken to court like the rest of us? The Court disagreed, finding merit in the colonial logic that public servants needed this rule to protect them against vexatious litigation. As I mentioned above, the Supreme Court took up the issue of requiring prior sanctions for investigations in 2014 when it considered the legality of Section 6-A of the DSPE Act. But it did not rule that such protections from investigations were bad per se, and instead chose to tackle the arbitrariness of only protecting certain kinds of public servants and not the entire set. That is where the law stands today: public servants are certainly in a different class, but the extent of their privileges remains unsettled.

While discussing amendments passed by the State of Rajasthan in 2017 here, which introduced very similar rules for that state, I suggested that this temerity of the Supreme Court might render it difficult for any court to now turn around and say that requiring prior sanction for investigation, when applied to all public servants, is unconstitutional. In that post, I also described how, rather than condemn the idea of sanction outright, the judiciary used the "official duties" language in Section 197 Cr.P.C. to regulate what kinds of conduct could require prior sanction (An entire monograph can be dedicated to the unprincipled way in which it has done this). Since 1997, when the judiciary went beyond mere regulation to hold an earlier avatar of Section 6-A of the DSPE was unconstitutional, there has been a constant tussle between judiciary and executive. Courts would nullify protections from investigations, only for governments to reinstate it in new ways. Section 17-A appears to be the central government's response to the judicial nullification of Section 6-A of the DSPE Act. I suspect that the cyclical trend will send the ball back to the judiciary, as the legality of Section 17-A will certainly be challenged before the Supreme Court. Once and for all, the Court can then set the record straight and tell us what it thinks about laws shielding public servants from investigations, putting them truly in a class of their own above the rest of us plebeians.  

Conclusions and Next Post

As this post discussed, not only do the 2018 amendments to the PC Act introduce brand new areas to the law, they also make substantial changes to the core concern of Indian anticorruption legislation: the prosecution of corrupt public servants. By streamlining the substantive offences, the amendments have taken a step in the right direction. Sadly, these progressive steps suffer from familiar flaws in terms of poor legal drafting. But equally important, if not more, are the changes brought about to the law on requiring prior sanctions to prosecute public servants for corruption. Not only have existing shields against prosecutions been fortified, but an entirely new protection against investigations has been introduced. This provision cements just how big a shift has been made from the old regime: not only did is Section 13(1)(d)(iii) deleted from the PC Act, but conduct which was earlier a basis for prosecution is now the subject of additional protections through the amendments. Perhaps because of this, it is difficult to avoid a sense that the PC Act will now carry lesser bite while going after public servants. In the next and final post of this series, I will look at the addition of a forfeiture regime to the PC Act, an area where more bite has seemingly been added to the law.