Section 19 Prevention Of Corruption Act, Not Unconstitutional
Post on 07,March 2017   2:00 AM
By - PolyEyes Staff
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Recently a two Judge Bench of the Supreme Court dismissed a Public Interest Litigation, seeking direction to declare Section 19 of the Prevention of Corruption Act,1988 unconstitutional however directing 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.

It upheld a past judgement that a court initiated investigation against a public servant would requireprevious sanction of government.

Previous Sanction under Sec 19 (1) PC Act:

  • It is given by union government if union government has power to remove the official.
  • It is given by state government if state government has power to remove the official.
  • In case of other public servants, it is given by competent authority.

The bar is against the court to take cognizance for the purposes of trial butas per Sec 19, there is no prohibition to start an investigation by lodging an FIR or through a court-initiated investigationunder Section 156(3) CrPC

Objectives of PC Act:

  • The objective of Sec 19 of PC Act isObligating the governmentto protecthonest officers and those acting in good faith towards their duty from frivolous complaints.
  • Letting the public servants take decisions for good governance without fear or harassment.
  • Previous sanctionprotects the corrupt public servants whichgoesagainst transparency and accountability.
  • SC decisions havecreated confusionover the status of Sec 19 in PC Act and previous sanction. This can be a potential harm to the delivery of good governance.
  • Such judgement may also erode trust of the public over the public administration and judiciary.
  • Prevention of Corruption Amendment Bill 2016-Contentious provisions on prior sanction.
  • Complaints regarding corruption on decisions taken or recommendations made by public servants on official duty shall not be investigated without the prior approval of the Lokpal or Lokayuktasas the case maybe.
  • The prior approval will be extended to the retired officials too.

The independence of criminal investigation from the executive is a sine qua non for success of a criminal justice system, especially in corruption cases. It is imperative that the SCshouldcorrect the apparent anomalies in the state of the law on sanction

Some of the previous judgments

  • 1951 -R.R. Chari v/s State case.
  • SC held that there was no requirement of sanction for investigation under Section 156(3) CrPC.
  • 1998-State of Rajasthan v/s Raj Kumarcase.
  • SC upheld no need for sanction before filing a charge sheet under Section 173 CrPC.
  • 2013-Anil Kumar v/s M.K. Aiyappa case.
  • SC upheld that Section 19 applies at the threshold itself and investigation under Section 156(3) CrPC requires a prior sanction.
  • 2014-Subramanian Swami v/s Union of India case.
  • Section 6A of Delhi Special Police Establishment Actrequiring prior sanction, was made unconstitutional.
  • 2016-L. Narayana Swamy v/s State case.
  • SC upheld the decision of 2013.
  • 2016 –KarnatakaHigh Court in NC Shivkumar v/s the Statesaid that 2016 SC judgement had ignored the settled principles of earlier judgments rendered by larger benches.
  • Manzoor Ali Khan v. Union of India And Others.
  • State of Maharashtra Through C.B.I. v. Mahesh G. Jain.
  • Chittaranjan Das v. State of Orissa.
  • Abhay Singh Chautala v. C.B.I.
  • State of Madhya Pradesh v. Jiyalal

Concluding highlights of the decision in the above mentioned cases: Words in Section 19 (2) are to be read in conjunction with sections 19(1)(a), 19(1)(b) and 19 (1)(c) – these clauses only fix the sanctioning authority to be the authority which is capable of “removing a public servant”.

  • Mere possibility of abuse of Section 19 of the PC Act cannot be a ground to declare it unconstitutional.
  • Satisfaction of the sanctioning authority is essential to validate an order granting sanction.
  • Sanction is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilty.
  • Sanction sought for, refused by the competent authority to prosecute a public servant while in service, cannot subsequently be prosecuted after retirement.
  • If the public servant had abused a particular office and was not holding that office on the date of taking cognizance, there would be no necessity to obtain sanction.
  • No requirement for the sanctioning authority to be examined as a witness by the prosecution- It isopen to the respondent to question the genuineness or validity of the sanction order before the Special Judge.
  • Question as to whether the proper sanction was accorded or not is to be determined at the stage of taking cognizance.
  • Grant of proper sanction is a sine qua non for taking cognizance of the offence.

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