Why is sanction for prosecution needed

• The recent decision by Karnataka Governor Thawar Chand Gehlot to approve an investigation into Chief Minister Siddaramaiah over alleged irregularities in land allotment has reignited the debate on the role of sanction in prosecuting public servants.
• This development underscores the intricate interplay between legal provisions and constitutional principles governing the prosecution of public officials.
• Understanding the rationale and implications of these legal provisions is crucial for maintaining accountability while safeguarding the integrity of the public service.

The Rationale for Sanction in Prosecuting Public Servants:

• Sanction for prosecuting a public servant is a critical feature of anti-corruption laws, aimed at protecting officials from frivolous and malicious prosecution. Section 197 of the Code of Criminal Procedure (CrPC) stipulates that no court can take cognizance of offenses involving a public servant without prior sanction from an authority competent to remove that person from office.
• Similarly, Section 6 of the Prevention of Corruption Act (PCA) emphasizes that such sanctions are necessary to avoid harassment of public servants for decisions made during their official duties.
• These provisions are designed to strike a balance between holding public officials accountable and protecting them from unwarranted legal actions that could impede their functioning.
• The requirement for sanction reflects the understanding that public servants, by virtue of their roles, make numerous decisions that may be scrutinized or questioned, but not all actions warrant legal prosecution.

Recent Developments and Provisions:

• The recent amendments to the PCA and the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) have brought some changes to the sanctioning process.
• The 2018 amendment to the PCA now requires government approval even to initiate an investigation, adding a layer of scrutiny before prosecution can proceed.
• Under Section 19 of the PCA, the sanction is still necessary for a court to consider a charge sheet or complaint, applying to both current and former public servants.
• The BNSS, which replaces the CrPC, retains the sanction provisions but adds procedural clarity. It reflects the ongoing efforts to streamline the legal framework governing the prosecution of public officials, ensuring that due process is followed while enhancing the efficacy of anti-corruption measures.

The Governor’s Role in Sanctioning Prosecution:

• The role of the Governor in sanctioning the prosecution of a Chief Minister is particularly complex. Traditionally, sanction for prosecution is granted by the State or Central government, but when it comes to high-ranking officials like a Chief Minister, the Governor assumes a pivotal role.
• The Governor's power to grant or withhold sanction is derived from the authority to dismiss a Chief Minister, placing them in a unique position of discretion.
• The Supreme Court, in cases such as A.R. Antulay, has emphasized that the Governor must act independently when deciding on sanctions for a Chief Minister, rather than simply following the advice of the Council of Ministers.
• This principle ensures that the decision to prosecute is not unduly influenced by political considerations, reinforcing the integrity of the sanctioning process.

Judicial Precedents and Their Implications:

• Judicial precedents have clarified the Governor’s role in sanctioning prosecutions. The Supreme Court’s decision in Madhya Pradesh Special Police Establishment vs. State of MP highlighted instances where the Governor’s discretion was justified due to the irrationality or bias in the Council of Ministers' decisions.
• This reinforces the notion that while the Council of Ministers generally holds decision-making power, the Governor’s independent judgment is crucial in cases where political bias or procedural deficiencies are evident.