Courts should act

Lower courts can do almost nothing about a complaint of corruption brought to them directly unless there is prior sanction from the govt.

In a democracy, where clean governance is a cherished goal, how many safeguards should public servants enjoy before they are tried for corruption? The Supreme Court’s views, expressed in the recent case of L Narayana Swamy vs State of Karnataka & Ors, add more fuel to this debate.

In 2014, the Karnataka High Court had upheld a District and Sessions Judge’s order directing the state’s Lokayukta Police to investigate a complaint of corruption relating to illegal land use conversion. A bunch of babus and a former minister are involved in this case. On September 6, 2016, the Apex Court partially set aside the High Court’s finding ruling that a lower court cannot even entertain a complaint of corruption against public servants without the prior approval of the government.

Under the nearly 30-year old Prevention of Corruption Act, a minister, MP, MLA or any civil servant cannot be tried in court without prior approval of the authority which appointed him, if the charges of corruption relate to the performance his official duties. Protecting honest and sincere public servants from baseless charges or political vendetta is the well recognised purpose of this safeguard.

However, post-independence jurisprudence around corruption made it crystal clear that the question of obtaining prior sanction of the government would come up only after the investigating agency has collected enough evidence to try the accused. Thanks to the L Narayana Swamy case, henceforth, lower courts can do almost nothing about a complaint of corruption brought to them directly unless there is prior sanction from the government concerned to take action.

The Apex Court’s finding is based on its interpretation of the term “cognizance” mentioned in Section 19 of the anti-corruption law. In simple language, “cognizance” means a court formally taking notice of an offence and initiating the process to determine whether there is adequate evidence to punish the accused. In L Narayana Swamy ,the Court has ruled that even entertaining a complaint prior to the commencement of investigation amounts to taking “cognizance.”

With utmost respect to the Supreme Court, it must be pointed out that this trend of interpretation of the term “cognizance”, since 2009 (for example- State of Uttar Pradesh vs Parasnath Singh and Dr Subramanian Swamy vs Dr Manmohan Singh & Anr), does not take into account several rulings to the contrary.

Other benches of the Supreme Court have held that a court’s action of directing investigation into a complaint brought before it, is only “administrative in nature” and does not amount to taking judicial notice of the case or of the accused.

For example, in Mona Panwar vs High Court of Judicature, Allahabad (2011) the Apex Court had held that a magistrate’s direction to the police to investigate a complaint does not amount to taking “cognizance” of the case but is only a reminder to the police to exercise its statutory powers of investigation of the case. This position was reiterated by another bench of the Apex Court in 2012 in the case of illegal mining against the same former Karnataka minister involved in L Narayana Swamy case, and his close confidante – a former MLA.

Lack of confidence in the regular police or the anti-corruption agencies is a major reason why citizens go to court with their complaints directly. Approaching courts also gives a large measure of security for the complainants from threats or even murderous attacks by elements seeking to silence them.

L Narayana Swamy challenges our common sense on another account. How will a government make a reasoned decision, whether or not to prosecute a babu, merely on the basis of allegations made in a complaint? In the absence of hard evidence, which a lawful investigation process can collect, refusal of sanction to prosecute a babu may become the default option.

Statutory safeguards
The second finding of the Supreme Court in L Narayana Swamy has many babus trembling. Earlier in Parkash Singh Badal & Anr vs State of Punjab & Ors (2007) and Abhay Singh Chautala vs CBI (2011), the Court had ruled that sanction for prosecution of a public servant is not necessary if he is no longer holding the office that he occupied while committing corruption. The Court has now said, prior approval for prosecution is not required if the public servant complained against is transferred out of the office in which he is alleged to have committed corruption.

On the face of it, this finding seems like a dilution of statutory safeguards for bureaucrats. However, a deeper examination indicates that in actual practice, it may nullify the compulsoriness of prior sanction for a court to direct investigation into a corruption complaint. It is common knowledge that bureaucrats are transferred at the whims and fancies of politicians. So the entire exercise of seeking the government’s sanction for investigating a complaint made to a court directly, becomes futile as soon as the accused is transferred out. This issue needs to be urgently clarified by a larger Bench of the Supreme Court.

The contentious issue of seeking the government’s approval for prosecuting bureaucrats can be resolved if only if the Central government enforces the Lokpal and Lokayuktas Act immediately. If the Lokpal is established at the Centre and the state Lokayuktas are similarly empowered, they will become the primary authorities for granting sanction for prosecution in corruption cases.

Governments will no longer have any role to play. However, the Central government is seeking to amend this three year-old law even before implementing it. The amendment proposals are pending in Parliament without making it to the House agenda, session after session.  Perhaps another mass movement is required to push the government to implement this long-awaited law.

(The writer is with Commonwealth Human Rights Initiative, New Delhi. Views are personal)

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