Sanctions to prosecute MPs and MLAs : An analysis

By Anuj Shukla and Govind Gehlot

INTRODUCTION

A high voltage political drama unfolded in the state when the CM Ashok Gehlot of congress-led Rajasthan government accused BJP of toppling their MLA’s with bribe, while Deputy Chief Minister Sachin Pilot along with 30 supporters alleged the Government to be in minority. Government pressed the charges against Pilot under Section 124A of the Indian Penal Code, 1860 (“the IPC”) along with charges of criminal conspiracy. The point to ponder on is whether there is a need for sanctions prior to prosecution?

Sanction in general means prior permission or approval of the authority to validate something. Black’s Law Dictionary defines sanction as a part of law used to inflict a penalty for its violation and seeks its obedience. The Code of Criminal Procedure 1973 (“the Code”) takes former into consideration and provides for two types of sanctions – Sanction to Prosecute (Sec.132) and Sanction to take Cognizance (Sec.196 and 197). Difference lies at the stage of criminal machinery at which the sanction is granted. Sanction to prosecute is to be taken before filing a complaint or F.I.R whereas Sanction to take cognizance is to be granted at pre-cognizance and post investigation stage.

Section132 of the Code provides that no one shall be prosecuted without obtaining sanction from the Central Government when such person is a member or officer of armed forces and from the State Government in any other case, if the person commits an offence under Sections 129, 130 and 131 of the Code. On the other hand, Section 196 and 197 of the Code provides for sanction of the Central Government or State Government, as the case may be, for prosecution for offences against the state and of Judges and Public servants respectively. The question is who all are covered under the heads of Public Servants? Whether MPs and MLAs are also Public Servants as per Section197 of the Code and thus are sanctions required for prosecuting them?

NEED FOR SANCTIONS

Sanctions are necessary only in two conditions. First, in case where offence committed is punishable under Chapter VI of the IPC. It includes offences like sedition, criminal conspiracy, waging war against the Government etc. or second for Public Interest i.e to prevent unwanted intruders in state matters, to protect public servants from harassment, malicious, mala fide and false prosecutions and for smooth and efficient functioning of the administrative system. This process of sanctions would prevent unordinary arrests of public servants. Sanctions are favoured on three grounds- (a) Frivolous cases are not filed, (b) Public Servants are not harassed and (c) Efficacy of administrative machinery is not tampered, as held in the case of Subramanian Swamy vs. Dr. Manmohan Singh & Anr.

WHO ALL CONSTITUTE PUBLIC SERVANTS

Protective discrimination for public officials is allowed by way of sanctions in criminal law in India. Various laws provide for requirement of sanctions to investigate and prosecute public officials. But the question which arises is who all constitute public servants. Section 21 of IPC provides a list of heads which defines the term “Public Servants”. Also, the Prevention of Corruption Act, 1947 (“the Act”) states that public servant would mean same as defined in IPC. But the act was repealed in 1988 and provides twelve heads categorising public servant. These heads are not same as given under IPC. Section 2(c) of the Act states public servant with clause (vii) defining them as those officials who by virtue of their position are required to perform a public duty and Section 13(1)(d)(iii) of the Act talks about criminal misconduct by public servant which includes any type of pecuniary or monetary advantage received without any public interest in it.

Also, Section 19 of the Act provides for prior sanction from the competent authority to prosecute public servants for commission of said offences under this act. The section restricts itself to the public servants serving at their positions presently and excludes retired servants. They lacked this protection under the law. Similar connotation was made in Section 197 of the Code where the main object behind this section is to scrutinise whether the said allegations against the public servant are false and vexatious as to harm their reputation and position.

But this protection cannot be given in cases where the acts done by public servants are in personal capacity and not while discharging their official duty. In the case of Prakash Singh Badal and Anr vs. State Of Punjab and Ors, the court held that the act must be done within the purview of the official duties of the public servant in question and not in their personal capacity. What is important here is the nature of the offence and the protection of this provision is available if the act qualifies to be the official duty of the public servant. If a police officer uses power to harm others in discharge of his duty then sanction may be necessary. But if without any explanation uses such power therefore then the provision under Section 197 of the Code cannot be used.

The public servant committing the offence must have necessarily abused or misused office and the authority must be able to do away with him so as to be allowed to award sanction. In case of plurality of offices, permission is not necessary from all authorities who are entitled to remove the public servant from an agency which is not alleged or abused.

ARE MPs AND MLAs PUBLIC SERVANTS ?

In the case of R. S. Nayak vs. A. R. Antulay, Chief Minister was accused to have committed offence under Section 161 and 165 of the IPC and Section 5 of the Act. The question that needed to be answered was whether there is requirement of sanction to prosecute as the person alleged has ceased to be the chief minister but is still a sitting MLA. The court opined that there is no such need for the sanction as he is no more in the capacity of public servant in which he had committed the said offence. The accused in such case must continue to be a public servant till the date cognizance is taken by the court. It was held that MLAs are excluded as public servant under IPC as they are not paid by the executive government for his duty. Also, legislature is not considered to be within the ambit of Government as per Section 21(12) of IPC.

In the case of M. Karunanidhi vs. Union of India, it was again questioned regarding MLAs as public servants. The court conceded that MLA is not in the service of State Government, thus not a public servant. The sanctioning authorities in such cases would be the Central or State Governments under which that servant works. However the ministers are considered to be public servants as they discharge their official duties as per the norms of State Government.

The Act repealed the definitions of public servants given under IPC. This distinction was much focused in the case of L. K. Advani vs. CBI where plea was made to drop charges of criminal conspiracy against him along with other ministers in Babri Mosque demolition. The court refused to take the definition of IPC into consideration. It leads to the case of P. V. Narasimha Rao vs. State, the congress party was alleged to have given bribe to MPs to vote against the no-confidence motion moved in Lok Sabha. Here the court opined that the extended definition of public servant under Section 2(c)(viii) of the Act includes MPs and hence they are considered to be public servant for the purpose of this act. The court further adds on to conclude that the definition is much wider and more people can be covered under list of public servants and till amendments are made regarding the sanctioning authority, the power will vest in Speaker or the Chairman of the respective Legislative House.

IRREGULARITY IN GRANTING OF SANCTIONS

The powers rendered in the relevant Section are discretionary powers and not discriminatory power as it has reasonable classification principle. Sanction is not necessary when the said offence is not in direct connection with the discharge of the person’s official duty. Sanctions give immunity to MPs and MLAs with a chance for fair trial in accused-oriented justice system of our country. The trial would only be vitiated in the cases where there is a close nexus between the act and the office. Otherwise, if the act was of criminal nature, out of course of duty, there is no point in seeking a sanction and the trial therefore continues. In a case, if sanction was necessary and did not obtain the sanction then the trial without sanction is void ab initio and Section 465 of the Code can be invoked. Hence it should be proved by the prosecution that a valid sanction has been obtained from the authority. The authority while giving the sanction shall apply its mind and must be aware of the facts of the case and the sanction given should not be arbitrary.

CONCLUSION

MPs and MLAs are not public servants under Section 21 of IPC. However, there lies a contrast in the definition of public servant under the Act. Also, the cases which involve MPs and MLAs are in most instances delayed or not investigated properly. Delays are caused because of the influence these people have over the smooth working of the case. The 239^th Law Commission Report on “Expeditious Investigation and Trial of criminal cases against Influential public personalities” made useful recommendations relating to reducing arrears at stage of investigation and prosecution of such criminal cases. It has also formulated the directions that should be given to the existing legal framework to see that there are no impediments created in the investigation or trial of influential people.

In our view such biasedness by investigating agency has to be solved by check and balance method where superior authority like High Courts should take suo moto cognizance of the case if subordinate courts are not efficient enough. Also, unnecessary delay in such cases has to be looked into within a reasonable period of time to avoid tampering of evidence and witnesses. It will reduce chances of any form of impediments at the trial stage.

Powers given in the relevant sections are constitutionally valid as they pass the test of reasonable classification. Although, trials without a sanction, if required, render the proceedings void ab initio. Sanction is required when the court is to take cognizance of the alleged offence of the accused. If the offence was committed when the accused was a public servant and when the court calls upon for taking cognizance of such alleged offence, accused ceased to be a public servant, there is no need for sanction for prosecution. Therefore, the legislation for sanctions of high public personalities and government officials needs further refinement and lucidity.

[Co-authors are 2^nd year Law students of National Law University Odisha (NLUO).]