Public
servants occupy a special legal position to protect them from frivolous,
malicious, and vexatious prosecutions. This safeguard ensures that they can
perform their duties honestly, fearlessly, and efficiently. The principle of
immunity covers all actions undertaken by a public servant in the exercise of
state functions. However, this protection is not absolute—if a public servant
commits a criminal act under the guise of authority but for personal gain or
pleasure, such an act does not fall under the doctrine of state immunity.
Section 197(1) of the Cr.P.C.: The Principle of
State Immunity
Section
197(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.) codifies the principle
of state immunity. It mandates that when a public servant, judge, or
magistrate—who cannot be removed without government sanction—is accused of an
offense committed in the discharge of official duties, no court shall take
cognizance of the case without prior government approval.
For
Section 197(1) to apply, two conditions must be met:
- The accused must be a public
servant whose removal requires government sanction.
- The alleged offense must
have been committed while acting or purporting to act in the discharge of
official duties.
However,
this protection is not all-encompassing. It applies only to acts directly
linked to official functions. If a complaint under Section 200 of the Cr.P.C.
clearly shows that the alleged act was part of official duties, a magistrate
cannot take cognizance unless prior sanction has been obtained. In such cases,
without government sanction, the complaint itself is legally void.
Judicial Interpretation: Balancing Protection and
Accountability
The
Supreme Court has examined the issue of sanction extensively. In Om Prakash
Yadav v. Niranjan Kumar Upadhyay, the Court reiterated that sanction
requirements aim to prevent vexatious litigation but should not shield
wrongdoing.
Despite
this, sanction requirements often hinder legitimate prosecutions. Governments
frequently delay decisions on sanction requests, leaving them in limbo for
months or even years. In Vineet Narain v. Union of India, the Supreme
Court prescribed a three-month time limit (extendable by one month if
consultation with law officers is required) for granting or denying sanction.
Similarly, in Subramanian Swamy v. Manmohan Singh, the Court suggested
that Parliament establish clear time limits and introduce a provision for
"deemed sanction" if no decision is made within the prescribed
period.
The Shift Under the BNSS: Introduction of Deemed
Sanction
With the
enactment of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), Section
197 of the Cr.P.C. has been replaced by Section 218 of the BNSS. While the core
provisions remain unchanged, a significant addition has been made: the second
proviso to Section 218(1) introduces the concept of deemed sanction.
This new
provision states that if the government fails to decide on a sanction request
within 120 days from the date of receipt, the sanction shall be
deemed to have been granted.
Impact of Deemed Sanction
The
introduction of deemed sanction fundamentally alters the legal landscape.
Previously, inaction by the government meant indefinite delays in prosecuting
public servants. Under the new provision, once the 120-day period expires
without a decision, courts can proceed with the case as if sanction had been
granted. Consequently, public servants can no longer use the absence of
sanction as a defense, and the government loses its ability to indefinitely
stall proceedings.
While
this change ensures accountability and curbs bureaucratic inertia, it also
raises concerns. In a typical sanction process, the government must apply its
mind to the allegations and evidence before granting or refusing sanction.
Deemed sanction removes this discretionary element, potentially exposing honest
public servants to prosecution solely due to bureaucratic inefficiency.
However, this risk is somewhat mitigated by the additional protections
introduced under Section 175(4) and Section 223(2) of the BNSS.
A Step in the Right Direction?
For
private individuals seeking to hold public servants accountable, deemed
sanction is a welcome reform. Previously, complainants had to endure long waits
and bureaucratic roadblocks while seeking sanction. Now, they only need to wait
120 days before the prosecution can proceed.
Given the
government's historical lethargy in sanction decisions, the introduction of
deemed sanction is a crucial step toward ensuring timely justice. While it
presents challenges for public servants, the broader impact is
positive—reinforcing accountability and reducing unnecessary delays in
prosecuting corruption and misconduct.
Conclusion
The shift
from Cr.P.C. to BNSS brings a significant procedural
transformation. The deemed sanction provision addresses longstanding issues of
governmental inaction, enabling timely prosecution of public servants. However,
it also raises concerns about the lack of active decision-making in granting
sanction, potentially exposing honest officials to unwarranted legal
proceedings. Striking the right balance between protecting public servants and
ensuring accountability will be key to the effective implementation of this
provision.
