Authored By – SAI SWETHAA R, CHETTINAD SCHOOL OF LAW
A) INTRODUCTION
The Prevention of Corruption Act came into force in 1988 to prevent fraudulent acts committed by public servants in the course of their employment. It primarily focuses on criminalizing bribery and malpractices among public servants. The first Act to govern and manage corruption was the Criminal Law (Amendment) Ordinance of 1944. Later, a Central Vigilance Commission was established to prevent corruption and related offenses.
The term sanction was introduced by the government to safeguard honest and hardworking public servants. It provides that any complaint must first be submitted to the head of the department of the concerned public servant, who is competent to remove them from their position. The sanctioning authority then decides on the criminality of the public servant before the case proceeds to court.
Such immunity is granted under the Constitution of India, the Bhartiya Nyaya Sanhita, 2023, and the Prevention of Corruption Act, 1988. The Indian Penal Code has addressed bribery since 1860, but its provisions were insufficient, leading to the enactment of the Prevention of Corruption Act. Sanction refers to permission or approval from a competent authority to prosecute a public servant, acting as a form of immunity. Immunities provide various benefits to public servants, such as financial allowances, privileges of holding office, and discretion in appointing others.
Keywords: sanction, central government, state government, prosecution, public servant, corruption
B) MEANING, DEFINITION & EXPLANATION
According to The Prevention of Corruption Act, 1988, the term ‘Public Servant’ is defined under Section 2(c) as:
“(i) Any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) Any person in the service or pay of a local authority;
(iii) Any person in the service or pay of a corporation established by or under a Central, Provincial, or State Act, or an authority or a body owned, controlled, or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).”
Sanction – Meaning & Scope
Sanction refers to official permission or approval from a competent authority to prosecute a public servant. A Chief Minister or a Minister is considered a public servant under Section 21(12) of the Indian Penal Code, as held in M. Karunanidhi v. Union of India.
Immunities granted to public servants can be seen as both a boon and a bane. Public servants represent the government, and the question arises whether the immunities provided to them under various statutes are unfair compared to those available to the general public. The Constitution of India, the Prevention of Corruption Act, 1988, and the Bhartiya Nyaya Suraksha Sanhita, 2023 grant specific immunities to public servants, including:
- Subsistence Allowance: A suspended employee is entitled to receive 75% of their monthly salary as financial support during the suspension period.
- Prior Sanction Period: Public servants are given three months, plus an additional one month for legal consultation before sanction is granted.
- Reassignment to Non-Sensitive Positions: Suspended public servants may be placed in non-sensitive areas of work.
C) PROVISIONS REGARDING IMMUNITY FOR PUBLIC SERVANTS
I. Section 311 of The Constitution of India
This section governs the dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or the State.
- A civil servant cannot be removed by an authority lower in rank than the appointing authority.
- The law ensures that civil servants have the right to be heard and to defend themselves before any penalty is imposed.
- Any penalty is imposed only based on inquiry and evidence.
II. Section 19 of The Prevention of Corruption Act, 1988
This section outlines the requirement for sanction before prosecuting a public servant.
- No court can take cognizance of offenses under Sections 7, 11, 13, and 15 without prior sanction.
- The authority for granting sanction depends on the public servant’s employment:
- State Government Employees → Require sanction from the State Government.
- Central Government Employees → Require sanction from the Central Government.
- Other Employees → Require sanction from the competent authority empowered to remove them.
Conditions for Requesting Sanction
For sanction to be requested by any individual other than a police officer or investigation agency:
- A complaint must be filed before a competent court.
- The complaint must not be dismissed under Section 203 of the Code of Criminal Procedure.
- The public servant must be given a hearing before granting sanction.
Procedure
- A complaint is filed before a competent court.
- The complaint must not be dismissed under the Bhartiya Nyaya Suraksha Sanhita, 2023.
- The public servant is given an opportunity to be heard.
Time Limit for Granting Sanction
- The competent authority must decide within 3 months.
- An additional 1-month extension may be granted for legal consultation.
- If an error occurs, the sanction cannot be reversed unless it fails to meet the ends of justice.
Case Law: Mr. Syed Zameer Pasha v. State of Karnataka
- The petitioner was charged with disproportionate assets.
- The charge sheet was filed on 29.5.2018, and the case was presented before the trial court on 5.7.2018.
- The court took cognizance on 30.7.2018, whereas the amendment to the Act came into effect on 26.7.2018.
- The court upheld that sanction is unnecessary for retired public servants who committed offenses under the unamended Act.
- The amendment to the Prevention of Corruption Act does not apply retrospectively.
III. Section 218 – Prosecution of Judges and Public Servants under the Bhartiya Nyaya Suraksha Sanhita, 2023
- A court cannot take cognizance of an offense without prior sanction when judges, magistrates, and public servants commit an offense while acting officially.
- For armed forces personnel, sanction from the Central Government is required.
Deadline for Sanction
- The government must decide within 120 days.
- Failure to decide within this timeframe results in automatic sanction.
D) DOCTRINES/THEORIES REGARDING IMMUNITIES TO PUBLIC SERVANTS
Doctrine of Pleasure – Article 310 of the Constitution of India
The Doctrine of Pleasure states that civil servants hold their position at the pleasure of the President or the Governor.
- The President can dismiss central government employees.
- The Governor can dismiss state government employees.
Exceptions to the Doctrine of Pleasure
- Supreme Court Judges
- High Court Judges
- Chief Election Commissioner
- Chairman and Members of the Public Service Commission
Case Law: State of Punjab v. Kishen Dass (1971)
- A mere reduction in salary does not invoke Article 311 of the Constitution.
- The judgment emphasized the importance of Article 311 in ensuring fair treatment of civil servants.
E) 2018 Amendment to the Prevention of Corruption Act, 1988
The amendment was much needed as the unamended Act had a lower success rate. It was brought into force on 26th July 2018 to align with the United Nations Convention Against Corruption, 2005, which India later ratified in 2011. Some key amendments are:
i. Definition of ‘Undue Advantage’
This amendment defined ‘undue advantage’ as illegal gratification other than remuneration, either for oneself or another person. It is punishable with imprisonment for not less than three years, which may extend to seven years.
ii. Liability for Offering/Giving Bribes (Section 8)
The amendment made individuals liable for offering or giving bribes to public servants under Section 8. A separate provision was introduced for punishing bribe-givers with imprisonment for not less than three years, extendable to seven years. However, an exception is provided: if the bribe-giver reports the act to the concerned authority within seven days, they shall not be held liable.
iii. Definition of ‘Commercial Organization’ (Section 9)
The term ‘commercial organization’ was introduced to clarify Section 9, which deals with offering bribes by commercial organizations. This amendment urged the Central Government to prescribe guidelines that commercial organizations must follow to prevent corruption.
iv. Redefining Criminal Misconduct (Section 13)
The amendment replaced Section 13, reducing it to two clauses:
- Misappropriation or conversion for personal use of any property entrusted to or under the control of a public servant.
- Amassing assets disproportionate to known sources of income.
v. Prior Sanction for Investigation and Prosecution (Section 19)
The amendment mandates prior sanction from the appropriate government before initiating an investigation or prosecution. This applies even to retired public servants for offenses committed during their tenure. Additionally, the section prescribes a directory time limit of three months for deciding the sanction, with an extension of one month for legal consultation.
vi. Completion of Trial within Two Years
The amendment directs that the trial must be completed within two years. However, it allows for extensions of six months and, in exceptional cases, up to four years with a valid justification.
vii. Stricter Punishments
The amendment made punishments more severe, increasing the minimum imprisonment period to three years, with a maximum of five to seven years.
F) Two-Pronged Test Under Section 218 of the Bhartiya Nyaya Suraksha Sanhita, 2023
To initiate proceedings against a public servant, the following two conditions must be met:
- Sanction from the respective government must be obtained by the investigating authority.
- The act/offense must have been committed during employment or while discharging official duty.
If these conditions are met, the public servant shall be prosecuted with proper sanction.
Competent Authority for Sanction
For offenses committed by a Chief Minister or a Minister, the Governor is the competent authority to decide on sanction, either individually or based on the Council of Ministers’ advice, as per Article 163 of the Constitution. This was reaffirmed in the case M.P Special Police Establishment v. State of M.P & Others.
G) Duty of the Prosecution and Sanctioning Authority
The Hon’ble Supreme Court, in CBI v. Ashok Kumar Aggarwal, outlined the responsibilities of the sanctioning authority and prosecution under Section 19 of the Prevention of Corruption Act, 1988:
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Prosecution’s Duty:
- Must provide all relevant documents to the sanctioning authority, including FIR, witness statements, recovery memos, draft charge sheets, etc.
- Material evidence favoring the accused must also be submitted.
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Sanctioning Authority’s Duty:
- Must scrutinize all material documents independently and apply its mind before granting sanction.
- Sanction must consider public interest and protections available to the accused.
- The sanction order should clearly indicate that all relevant facts were reviewed, and the authority applied its mind before granting approval.
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Court’s Duty:
- The prosecution must prove before the court that the sanctioning authority had all necessary evidence and legally granted sanction after due consideration.
H) Sanction as the First Step
In Mohd. Iqbal Ahmed v. State of A.P., the Court held that any case without proper sanction is void ab initio, as the court cannot take cognizance without a valid sanction. Therefore:
- A valid sanction must be proved before proceeding with the case.
- The offense must be established to justify the need for a sanction.
I) When is Sanction Not Necessary?
Sanction is not required if a public servant is charged under Sections 420, 409, 467, or 471 of the Indian Penal Code (IPC). This was upheld in Chandan Kumar Basu v. State of Bihar.
J) Conclusion & Comments
To prosecute a public servant, prior sanction is mandatory. No court can take cognizance of offenses committed by a public servant without sanction.
Sanction and other legal protections function as immunities for public servants. These immunities are provided under:
- The Prevention of Corruption Act, 1988
- The Bhartiya Nyaya Suraksha Sanhita, 2023
- The Constitution of India
Possible Reforms
The sanction period (three months + one-month extension) could be shortened to prevent witness tampering and other malpractices that weaken the prosecution’s case. Instead, a monthly or quarterly inspection of public servants’ work could be conducted to prevent corruption while ensuring accountability.
However, the sanction process is crucial for protecting honest public servants who act in good faith. A balanced approach is necessary to avoid misuse of the law while ensuring corruption-free governance.
K) References
1. Online Articles/Sources Referred
a. Sanction for Prosecution of Public Servants – A Necessary Evil – Manupatra by Biplab Kumar Lenin
b. Tests “Public Servants” Must Pass to Claim Protection Under Section 197 of Cr.P.C. – Is There a Silver Lining? By Juvraj Singh & Anmol Dhindsa
c. SCC Online
2. Cases Referred
a. M. Karunanidhi v. Union of India
b. Chandan Kumar Basu v. State of Bihar
c. CBI v. Ashok Kumar Aggarwal
d. M.P. Special Police Establishment v. State of M.P & Others
3. Statutes Referred
a. The Prevention of Corruption Act, 1988
b. The Constitution of India
c. The Bhartiya Nyaya Suraksha Sanhita, 2023
