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Where’s the ‘indictment’?

The Supreme Court judgment on sanction to prosecute only repeats principles set earlier — it is not a statement on the government

Written by Abhishek Singhvi |
February 7, 2012 12:03:43 am

The Supreme Court judgment on sanction to prosecute only repeats principles set earlier — it is not a statement on the government

The apex court judgement on grant/ denial of sanction is a purely legal exercise. That should hardly need emphasis because courts are supposed to,and invariably do,eschew political comments. But for those,like the BJP,who see politics lurking in every bush,who want to sensationalise and try to make political capital out of every event,this judgment has provided another opportunity to tilt at windmills.

First,the legal aspects: The judgment has brought about much-needed certainty and clarity,but mainly by reiterating principles of law enunciated in earlier leading apex court judgments. It starts by reminding us of the established principle that sanction is not required once the public servant concerned has ceased to be employed in the post in which the alleged delinquency occurred. Several judgments,30 to 40 years old,are cited in support.

Secondly,the apex court relies on the venerable judgment of A.R. Antulay (in the original round of which I had occasion to appear as a young lawyer),to state the twin principles that locus standi is a concept foreign to criminal law and that anyone has the right to set the criminal justice system in motion by filing a complaint before the appropriate magistrate.

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Thirdly,it rejects the government’s contention to the effect that the issue of grant of sanction does not arise at the stage of filing a complaint but only at the stage of cognisance of the complaint. Again,several older apex court judgments are cited to make the point that the magistrate cannot even entertain the complaint and cannot deal with it without sanction and that sanction should ideally be filed with the complaint.

Fourthly,it reiterates the well-established principle that action on a complaint can be taken even without a police report and that the latter is not a sine qua non for action. Fifthly,it rejects the contention that investigation must compulsorily precede the taking of cognisance.

Sixthly,it reiterates the principle that grant of sanction is not a quasi-judicial process,that it is administrative in nature and that it does not require any hearing to be given to the accused. In adumbrating each of these salutary principles,Justice Singhvi quotes copiously from older apex court judgments. In agreeing with him,Justice Ganguly does the same,though quoting fewer judgments.

Seventhly,in deprecating the delay in deciding pending applications for sanction,the court again reiterates no more than the 15-year-old principle of Vineet Narain’s case that sanctions should receive urgent attention and repeats the latter judgment’s time limit of four months. In all this,the apex court has tread cautiously and surely,basing itself on established and venerable earlier apex court precedent.

Turning now to the political aspects,it is clear that for over 18 months,the opposition has tried to drag the prime minister (as also the present home minister) repeatedly into the issue,and has also tried to elicit some comment or the other,howsoever innocuous,from the apex court,so as to embarrass the head of government. Subramanian Swamy’s links to the BJP and RSS are well known,and he has publicly declared that he is on the threshold of joining the BJP. Clearly,his attempt to implicate the PM has boomeranged,since the judgment categorically gives the prime minister a clean chit and copiously discusses the issue in several paragraphs. In particular,Justice Ganguly notes that no mala fides were even alleged by Swamy,and both judges note that the delay in grant of sanction was,at best,on account of wrong advice,with no personal involvement of the prime minister. I wonder if the BJP will emphasise this part of the judgment in any print or visual media.

Secondly,the same applies to the home minister to the extent that while he has not been given a clean chit,not a single comment attaching culpability to him has been elicited by Swamy from the apex court,despite assiduous and strenuous efforts. As far as the home minister is concerned,the scene shifts to the magistrate.

Thirdly,and significantly,the very raison d’ être of sanction has been questioned by the apex court. Its existence and use over the last several decades,at least according to Justice Ganguly,raises the issue of unfair discrimination in favour of public servants and against the common man by providing an additional protective arc to the former. The parliamentary committee on the Lokpal,which I had the privilege to chair,had,for the first time in 60 years,strongly and with several reasons,recommended the abolition of all external administrative sanctions,including those under Section 19 of the Prevention of Corruption Aact,Section 197 CrPC and the infamous single directive in Section 6A of the CBI Act,for Lokpal-covered offences. Our recommendations were accepted and the bill with these three deletions was passed in the Lok Sabha,despite vociferous BJP opposition. In the Upper House,the initiative failed,due to lack of numbers. Those who want to politicise and sensationalise must explain to the nation why they prevented the abolition of sanction.

Fourthly,the reiteration of the four-month Vineet Narain time limit for sanctions and its application even to ministers is welcome,since it brings clarity and stability. The reality is that sanctions have been languishing because of bureaucratic indifference in all governments,irrespective of political colour,for well beyond four months.

Lastly,one area where larger discussion by the apex court would have been welcome but is lacking is the area of logistical management of this issue. Theoretically,in this country of over one billion,complaints by anyone against any public servant,on the basis of newspaper reports,with no locus limitations,can arise. Sanctioning authorities may well be flooded with such requests at all administrative levels. They will have to create special and highly focused and efficient departments to deal with the flood of requests likely to arise as an unintended fallout of this judgment.

In conclusion,to describe this judgment as a “slap in the government’s face” or as “an indictment” or as a “severe embarrassment” is not only to ignore logic and twist facts but also to distort the English language!

The writer is a Congress MP and national spokesperson,and a jurist

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