All people are equal under law in India, yet certain provisions relating to prosecution sanctions suggest some people have more immunity even though their job demands transparency to the nation. This especially holds true for public servants and lawmakers in the country.

An analysis of a slew of provisions protecting ‘babus’ will reveal how they are encouraged to indulge in malpractices: Section 19 of the Prevention of Corruption Act prevents courts from taking cognizance of offences allegedly committed under the Act by a public servant without prior sanction of the government. And Section 197 of the Code of Criminal Procedure lays down the general requirement of prior sanction while prosecuting public servants. Such provisions were conceived to ensure that public servants are not harassed and their work not obstructed by frivolous complaints.

In practice, however, these protective measures have functioned as a shield against prosecuting dishonest bureaucrats and ministers to flout the law with impunity. Over the years, the debate whether an investigating agency needs prior sanction from the government to prosecute public servants has raged on along these lines.

It was in 2009 that the Supreme Court had first held that bureaucrats can be prosecuted without prior sanction of the appropriate authorities as all their acts during discharge of the official duties cannot be brought under the protective umbrella of section 197 of the Criminal Procedure Code. At the same time, the apex court had observed that the babus can indulge in abuse of power which cannot be identified as part of their official duties. This had enabled the prosecuting agencies like the Central Bureau of Investigation (CBI) to initiate proceedings against erring public servants for misuse of authority even if they tried to protect themselves at the behest of their masters. In the wake of lack of any political will on the subject, the SC has been running significant battle to cleanse up the system.

In 2012, in a case related to the 2G scam, the Supreme Court had made two important rulings: First, by holding that Janata Party president Subramanian Swamy had the locus standi to seek sanction to prosecute former telecom minister A. Raja, the court had empowered all citizens to press for action against those public servants suspected of corrupt practices.

It is notable that Swamy had appealed to the court to lay down guidelines to ensure such pleas from the “common people to prosecute the high and mighty” do not meet the same fate in the future. “Such deliberate obfuscation by the bureaucracy in such an important matter of prosecuting corruption should be rectified so that in the future, a citizen’s efforts to set the law in motion is not rendered sterile,” Swamy had then said.

Secondly, the court laid down that sanction for prosecution would be deemed to have been granted if the competent authority fails to take a decision within a period of four months. This was in broad consonance with the directives in the landmark Vineet Narain case, where the SC had ruled that while a maximum of three months for grant of sanction must be strictly adhered to, an additional one month may be allowed in cases where consultation with the Attorney General is required.

The SC had noted: “If we look at Section 19 of the Prevention of Corruption Act, we find that no time limit is mentioned. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.”

It further said: “Delay in granting sanction has spoilt many a valid prosecution and is adversely viewed in [the] public mind that in the name of considering a prayer for sanction, protection is given to a corrupt public official as a quid pro quo for services rendered by the official in the past or maybe [to be rendered] in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.” It was here where the debate whether prior sanction is required for prosecution of public servants gained more significance. It came as a blow to every bureaucrat who was shielded by the executive’s unwillingness to let them stand trial.

In the first week of July, the SC took up the cudgels again while hearing the CBI’s latest status report on the Coalgate scam. Coming down heavily on the government, the apex court observed there was “lack of transparency” in the process of coal block allotments and that “there was no system in place to verify the application of the companies and working of the screening committee appears to be sketchy”. It criticized the government for not making detailed records or supplying the CBI with the records that could have helped the agency in its investigation. Since there is nothing on records, the babus at fault are at the risk of going scot-dree.

A miffed court then asked the attorney general to respond to its two queries “why sanction of government is necessary in respect of court-monitored or courtdirected investigation”. “This query is put to attorney general in view of a categorical stand taken by the CBI before the Delhi HC in a matter in which the CBI counsel submitted that as the investigation was directed by the court, grant of sanction for prosecution was not necessary under Section 6 of the Delhi Special Police Establishment Act,” the bench said.

The bench also wanted to know “why clarification should not be made that sanction for investigation of offences alleged to have been committed under the Prevention of Corruption Act is necessary from the government when the government’s stand is that the power of supervision for investigation has already been shifted from government to CVC pursuant to direction issued by this court in Vineet Narain case”.

” It is no doubt that the highest court has sought to take up a task that was long overdue and is only making an effort to check the creep of criminality in our political systems. It is surely up to the judiciary to decide which petition in each particular case is vexatious or not and can be used to bring the erring officials to book.

“It is important in this case to also note that the Lokpal and Lokayutas Bill 2011 had dispensed with prior sanction for launching prosecution in cases inquired into by the Lokpal. This should thus be just the beginning because the idea that law must differ for public servants and private citizens is a creation that has no basis in principle,” says advocate Dipankar Mukherjee.