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Sanction to Prosecute Public Servant: Is the “shield” protective enough?

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By Sonia Mathur, Senior Advocate

The Government of India celebrates April 21st as “Civil Services Day” as an occasion for civil servants to rededicate themselves to the cause of society and its citizens. The idea is to commemorate the day when Sardar Vallabhbhai Patel, the first home minister of independent India referred to them in 1947 as the “steel frame of India”. Their contribution in the present times has been acknowledged by the Hon’ble President of India by referring to them as backbone of our country’s fight against Covid-19.

As a protective measure, Section 19 of Prevention of Corruption Act 1988 debars a Court from taking cognizance of specified offences where accused is a public servant, without prior sanction of the “Government concerned.” Validity of this “protective discrimination” was upheld by the Apex court as a necessary measure to safeguard the public servant from vexatious cases during discharge of official duties. However, no such protection from prosecution was available to a public servant after retirement from service. Hence, the risk of post retirement prosecution hung like a sword of Damocles on the serving public servants which had the potential of seriously compromising their decision making.

A restrictive view was taken by Supreme Court in L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598. The Court ruled that a public servant would lose the protection under Section 19 of the Act if he is transferred from the post allegedly abused by him, even though he continues to be a public servant. This decision raised concerns about a remedy available to public servants at the threshold of criminal proceedings in case of violation of the statutory mandate by the state actors. The law laid down also had the potential of being misused to harass honest public servants.

To facilitate an effective and fearless decision making by public servants, the legislature later amended Section 19 with effect from 26.07.2018. The statutory protection of sanction was extended to post retirement period. The statute now makes provision for scrutiny of the allegations against public servants, by superior authorities and a prior sanction, as condition precedent, at all times. The wording in the Act now is, that the person “who is employed” or as the case may be “was at the time of commission of the alleged offence employed”. Therefore, subsequent retirement will not cure the defect of want of sanction to prosecute a public servant under Prevention of Corruption Act. The amendment reflects realization that organizational perspective is not divorced from ethics at the individual level. It is the society which is ultimately denied full extent of competence and imagination of the public officials for fear of such prosecution.

However, the view taken by Supreme Court in L. Narayana Swamy v. State of Karnataka is still to be remedied. Every transfer from the office abused, whether by way of promotion or otherwise, would take away the shield of sanction even though the status of accused continues to be of a “public servant”. In this case, the accused persons were government officials and political office holder (Cabinet Minister), charged for offences under Prevention of Corruption Act and Indian Penal Code, 1860. However, both categories of public servants were to be treated differently for according protection of sanction.

A is a public servant accused of offences under the Prevention of Corruption Act and under Indian Penal Code 1860. Allegations relate to the period when he was working as Tahsildar, Land Revenue Department of the State Government. However, when cognizance is taken by the competent court, Mr A has been promoted to the post of Assistant Commissioner. He is now posted in some other Department of the State Government. The authority competent to remove him continues to be the State Government from the time of commission of offence till the stage of cognizance despite his promotion/transfer. Such “transfer” would not expose him to prosecution not protected by sanction.

B is a Minister, indisputably a “public servant”. After commission of offence and before cognizance is taken, he ceases to be Minister and is elected as a Municipal President. He continues to be a public servant under the Municipal law when cognizance is taken of the offences committed by him as a Minister. Would sanction be necessary and that too of the authority competent to remove him from the office of the Municipal President? The answer would be in negative. The authority competent to remove him from the present office would not know the nature and functions discharged by him while holding the office abused by him as Minister. Inference of knowledge of duties of office and its abuse is relatable to vertical hierarchy.

Power to grant sanction is conferred on the authority competent to remove the public servant from the office allegedly abused. Reason is, that authority alone would be able to judge the abuse, it’s extent and whether prima facie it had been done. This principle covers all public servants, be it political office holders or a government employee having protection of Article 309 and 311 of the Constitution. However, there would be a difference when the accused is holding political office as Minister, MP or MLA. In these cases, after every five years, with a possible change in political scenario, there would be change in competent authority to remove the public servant. Hence it is to combat such situation that Supreme Court had done away with requirement of sanction for prosecution on “change” of office abused. The authority competent to remove the politician from new office would not have the competence to assess the abuse of earlier office. In L Narayana Swamy, Apex Court relied upon the principle in R.S. Nayak Vs A.R. Antulay, (1984) 2 SCC 183 followed in Prakash Singh Badal Vs State of Punjab, (2007)1 SCC 1 and Abhay Singh Chautala Vs CBI (2011)7 SCC 141. Applying the same principle that has been consistently followed, Court held that sanction was not mandatory for cognizance because the accused were not holding the posts which were allegedly abused by them. However, the distinction between the political office holders and normal public servants, where every “transfer” may not necessarily lead to change in “competent authority” for sanction, has not been taken note of. Seen in the context of judgments relied upon, the term “transfer” implies change of authority competent to grant sanction under section 19(1) of the Act. However, this aspect, which is the touchstone to test the master servant relationship as envisaged under section 19(1) of the Act, has not been dealt with in L.Narayan Swamy. The judgment leads to ambiguity as to whether the accused public servant would be deprived of shield of sanction every time he is promoted/transferred from one office to another even if the authority competent to remove him remained the same. The judicial intent could never be to abrogate or take away the substantive right available to public servants under section 19 of Prevention of Corruption Act.

This issue arose during one of the “coal scam cases” where author was representing a “public servant”. The accused public servant was promoted from the post allegedly abused by him, but continued to work for the concerned State Government at higher position. Following the judgment in L Narayana Swamy, mere transfer on promotion from the post allegedly abused, would have led to his losing the protection of sanction if he was not finally acquitted. Controversy would be resolved by the Apex Court in an appropriate case, as no right could be curtailed by the guardian. Supreme Court in the case of L Narayana Swamy also held that no order directing further investigation under section 156(3) of the Code of Criminal Procedure could be passed against public servant without a valid sanction. However, this question is referred to larger bench in Manju Surana V/s Sunil Arora & Ors. 2018(5) SCC 557 and is yet to be finally decided.

The Author is a Senior Advocate, Supreme Court of India

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