Why is sanction for prosecution needed?

Sub: Polity

Sec: Constitution

Context:

Karnataka Governor has given approval to open an investigation against Chief Minister Siddaramaiah and to prosecute him in connection with alleged irregularities in the allotment of compensatory plots to his wife by the Mysore Urban Development Authority.

Why is sanction required to prosecute a public servant?

Sanction for prosecuting a public servant has been a mandatory feature of anti-corruption law.
This is intended to protect public servants from vexatious and malicious prosecution for actions and decisions made in the course of discharging their official duties.

Legal provisions:

Section 197 of the Code of Criminal Procedure Code (CrPC) said no court could take cognisance of a case against a public servant unless an authority competent to remove that person grants sanction.
Section 197 spoke of anyone who ‘is or was’ a public servant.
Prevention of Corruption Act (PCA), 1947 also has a sanction requirement, which is limited to the period when the public servant is in office.
Under both the CrPC and the Prevention of Corruption Act (PCA), the State and Central governments had the authority to sanction prosecution of their respective employees.

What are the latest provisions on granting sanction?

Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the procedure code that has replaced the CrPC, retains the sanction provisions.
PCA amended in 2018:
- a new provision was introduced under which the government’s approval is required, even to begin an investigation.
- Now, sanction is a pre-requisite for any court to take cognisance of a charge sheet or complaint of corruption.
- Also, sanction is applicable to those who are and were public servants.

What is the Governor’s role in a case against a CM?

Generally, the State government and the Central government grant sanctions for those employed by their respective governments.
However, PCA has a clause stating that in the case of “any other person”, the sanction would be granted by the authority competent to remove the public servant in office.
As the Governor is vested with the power to dismiss a CM, the Governor is seen as the authority to consider granting sanction for prosecuting a CM.

Question of Discretion:

Questions have often arisen as to whether the Governor exercises his discretion while considering sanction, or he is bound to act on the aid and advice of the Council of Ministers.

What the courts says:

In the case of A. R. Antulay, the Supreme Court held that the Governor should act in his discretion.
In Madhya Pradesh Special Police Establishment vs. State of MP and others (2004), the Supreme Court held that “on those rare occasions where on facts, the bias becomes apparent and/or the decision of Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right to act in his own discretion and grant sanction”.