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TMI Blog2014 (8) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... unconstitutional. The exercise of power has to be regulated to effectuate the purpose of law. The appellant has the right to file a complaint for prosecution of Respondent 2 in respect of the offences allegedly committed by him under the 1988 Act. While it is not possible to hold that the requirement of sanction is unconstitutional, the competent authority has to take a decision on the issue of sanction expeditiously as already observed. A fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand. Petition disposed off. - Writ Petition (C) No. 305 Of 2007 - - - Dated:- 6-8-2014 - T.S. Thakur And Adarsh Kumar Goel, JJ. JUDGEMENT Adarsh Kumar Goel, J. 1. This petition, by way of public interest litigation, seeks direction to declare Section 19 of the Prevention of Corruption Act, 1988 ( PC Act ) unconstitutional and to direct prosecution of all cases registered and investigated under the provisions of PC Act ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the PC Act confers unguided and arbitrary discretion on the Government to grant or not to grant sanction to prosecute corrupt and dishonest politicians, M.Ps, M.L.As and Government officials. 4. In response to the notice issued by this Court, affidavits have been filed by several State Governments and Union Territories but no counter affidavit has been filed by the Union of India. The stand taken in all the affidavits is almost identical. According to the said stand, the object of Section 19 of the PC Act is to protect public servants against irresponsible, frivolous and vexatious proceedings for acts performed in good faith in the discharge of their official duties and to protect them from unnecessary harassment of legal proceedings arising out of unfounded and baseless complaints. In the absence of such a provision, the public servant may not be inclined to offer his/her free and frank opinion and may not be able to function freely. 5. We have heard Mr. D.K. Garg, learned counsel for the petitioner and Mr. P.S. Narasimha, learned Additional Solicitor General for the Union of India and learned counsel for various States. 6. Section 19 of the PC Act is as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Explanation.-For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. 7. Question for consideration is whether Section 19 of the PC Act is unconstitutional and whether any further direction is called for in public interest and for enforcement or fundamental rights? 8. The issue raised in this petition is no longer res integra. Requirement of sanction has salutary object of protecting an innocent public servant against unwarranted and mala fide prosecution. Undoubtedly, there can be no tolerance to corruption which undermines core constitutional values of justice, equality, liberty and fraternity. At the same time, need to prosecute and punish the corrupt is no ground to deny protection to the honest. Mere possibility of abuse cannot be a ground to declare a provision, otherwise valid, to be unconstitutional. The exercise of power has to be regulated to effectuate the purpose of law. The matter h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries: R. v. Secy. of State for Foreign and Commonwealth Affairs, 1995 (1) WLR 386. ................................ ................................ 58. ......................... 15. Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG s office. 11. In a recent judgment of this Court in Subramanian Swamy vs. Manmohan Singh Anr., (2012) 3 SCC 64, the question for consideration was whether a private citizen has locus to prosecute a public servant and to obtain sanction and how an application for sanction was to be dealt with. It was held that any application for sanction sought even by a private citizen must be looked into expeditiously and decided as per the obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) If the sanctioning authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the sanctioning authority to adhere to the time-limit allowed by the Supreme Court in Vineet Narain case. 50. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. In concurring judgment, it was further observed: 68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect [pic]corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. 75. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under the PC Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced. In considering the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi v. Union of India (1978) 1 SCC 248. 80. I may not be understood to have expressed any doubt about the constitutional validity of Section 19 of the PC Act, but in my judgment the power under Section 19 of the PC Act must be reasonably exercised. In my judgment Parliament and the appropriate authority must consider restructuring Section 19 of the PC Act in such a manner as to make it consonant with reason, justice and fair play. 81. In my view, Parliament should consider the constitutional imperative of Article 14 enshrining the Rule of Law wherein due process of law has been read into by introducing a time-limit in Section 19 of the PC Act, 1988 for its working in a reasonable manner. Parliament may, in my opinion, consider the following guidelines: (a) All proposals for sanction placed before any sanctioning authority empowered to grant sanction for prosecution of a public servant under Section 19 of the PC Act must be decided within a period of three months of the receipt of the proposal by the authority concerned. (b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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