The Supreme Court on Wednesday refused to declare as unconstitutional the requirement of sanction before prosecuting politicians and public servants, while also holding that authorities must speedily decide requests of sanctions to prevent abuse of this protection meant only for “honest” persons.
“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 as already observed. 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,” held a bench led by Justice T S Thakur.
Examining the validity of Section 19 in the Prevention of Corruption Act, which mandates prior sanction before prosecuting legislators, bureaucrats and other public servants, the judgment, authored by Justice Adarsh Kumar Goel, underlined that requirement of sanction had salutary object of protecting an innocent public servant against unwarranted and malafide 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 bench said.
The judgment was delivered on a petition by lawyer Manzoor Ali Khan, alleging the said provision had lately become a tool in the hands of competent authorities to shield corrupt public servants, both bureaucrats and politicians.
Advocate D K Garg, arguing for Khan, had highlighted instances wherein then Uttar Pradesh Governor T V Rajeswar had refused sanction for prosecution of then Chief Minister Mayawati in the Rs 175-crore Taj Corridor case, and cases where prosecution of former Union ministers Satish Sharma and Sheila Kaul was stalled for want of sanction.
The bench appreciated the concerns raised in the petition while underlining that the issue regarding sanction had been dealt with by various judgments of the apex court during the pendency of Khan’s PIL.
The bench cited in particular the judgments in Vineet Narain and 2G cases where the court had set a timeline of three months for the competent authority to decide the requests of sanctions and it also brought in the idea of a deemed sanction when authorities failed to act within the stipulated period.
This case dealt with a post-investigation stage. A requirement of sanction before investigating an officer of the rank of joint secretary and above for offences under the Prevention of Corruption Act has already been declared illegal by the Supreme Court on May 6. It had held Section 6A of the Delhi Special Police Establishment Act, as “discriminatory” since it impedes tracking down the corrupt senior bureaucrats.
Subsequently, Attorney General Mukul Rohatgi had in his opinion to the Department of Training and Personnel, had said that the this provision should be “recast” to extend the protection to all officers, regardless of ranks.