Experts divided over power of sanction

As the unfolding Bhardwaj- Yeddyurappa saga reveals, it is never easy and always controversial to prosecute public officials. Many of the prosecution efforts, especially when politicians are involved, get caught in partisan politics.

Then there is also the question of crossing the constitutional barriers, which make these prosecutions conditional to sanctions. While the legal immunity protects public officials from frivolous petitioners, it also shields the corrupt and the criminal elements in the Government. Deccan Herald spoke to two eminent jurists to throw light on the subject.

Prashant Bhushan

I am of the opinion that sanction should not be required for prosecution of the Chief Minister. I am also against the provision that sanction is required to investigate officers of the rank joint secretary and above, as it is thoroughly misused. Prosecution-sanction is also misused by denying it against individuals, who have acted at the behest of the sanctioning authority.

For example, the Governor refused sanction for Uttar Pradesh Chief Minister Mayawati’s prosecution in the Taj Corridor case as he was acting at the behest of a Centre, which was dependent on her support. The provision of sanction is not followed rationally. If sanction is a must, it should be by an independent authority and not by the government or governor.

In the Yeddyurappa-Bharadwaj case, in my view, granting sanction is correct because the Governor is capable of sanctioning and does not need the Government permission. The matter has been settled by the five judge bench of the Supreme Court under Justice Santosh Hegde. Secondly, the Governor was right when he said there was enough prima facie for offences committed by the CM.

I agree that this Governor has often acted on partisan considerations but in this case, by merit, this is a fit case for grant of sanction. The BJP’s contention that there is no case for sanction as there is no chargesheet or no case has been filed in court, is not correct. In a private complaint you need sanction since the trial court cannot take up cases without sanction.

K T S Tulsi

It is the personal prerogative of the Governor to sanction or decline prosecution. He is not bound by the advice of Cabinet. This is for the reason that if the Governor was bound, then, as said by Suprem Court, none of the politicians would ever be prosecuted.

No cabinet will recommend prosecution of its own leader. Authority to sanction is one of the few personal prerogatives of the Governor.

In this case, the complainant has done enormous amount of research and come up with requisite support while making charges. It is voluminous, runs into couple of thousands of pages.

The Governor took time to go through them. Section 197 of the CrPC applies both to the complaint and police cases.

While in police case, there has to be investigation, in complaint cases the burden is on the complainant to bring home the charges. In this case, the complainant has chosen to do it on his own and allowed the Governor to form his opinion. The course of action adopted by the Governor is valid.

The provision of sanction should continue as otherwise, there will be any number of frivolous prosecutions, which will embroil almost every official in dozens of criminal cases. We cannot leave the matter of prosecution in the hands of all and sundry, there has to be some checks and regulatory provisions. The issue of sanction has been challenged in SC on more than half a dozen occasions and has been upheld every time.

(Prashant Bhushan and K T S Tulsi are senior advocates of Supreme Court. They spoke to B. S. Arun)

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