Sanction for Prosecution, and Action Against a Minister

A non obstante clause, "notwithstanding anything contained in", means that where this provision and the named provisions conflict, this one prevails.

Three statutes named, and each is a separate lock. Section 197 of the Code is the general protection for a public servant. Section 19 of the Prevention of Corruption Act is the special one for corruption. Section 6A of the Delhi Special Police Establishment Act required prior approval before the Central Bureau of Investigation could even inquire into a senior officer, and it was struck down as violative of article 14 in May 2014, four months after this Act came into force.

So in a Lokpal case the sanction decision belongs to the Lokpal. The Government does not decide whether its own Minister may be prosecuted. Once that sentence is understood, most of what people say about the Lokpal being toothless has to be reconsidered.

Section 23(2): and nobody else's sanction will do

No prosecution shall be initiated against a public servant accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such an offence, except with the previous sanction of the Lokpal.

Read (1) and (2) together. Sub-section (1) gives the Lokpal the power to sanction. Sub-section (2) makes that sanction the only one that counts in the cases the Act covers. The Lokpal's sanction is not an additional permission on top of the Government's; it replaces it.

"Purporting to act" is worth explaining, because it is doing work. A corrupt act is never truly in the discharge of official duty. If sanction were required only for acts genuinely in the discharge of duty, no corruption case would ever need one and the protection would be empty. The words "purporting to act" bring in the officer who was ostensibly performing his function, and the courts have long read the sanction provisions that way.

Section 23(3): the constitutional office holders

Nothing in sub-sections (1) and (2) applies in respect of persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal has been specified therein.

Who that means. A Judge of the Supreme Court or a High Court, whose removal is governed by article 124(4) read with article 217 and 218. The Comptroller and Auditor-General, whose removal follows the same route under article 148(1). The Chief Election Commissioner, under article 324(5). The Chairman and members of the Union Public Service Commission, under article 317.

Why the exception. Because the Constitution has already provided how those persons are to be dealt with, and an ordinary Act cannot substitute a different route. It is the same principle that keeps the judiciary out of the Lokpal Act altogether and sends MU's eighth label to the Judges (Inquiry) Act 1968 instead.

What it does not mean. It does not mean such a person cannot be prosecuted at all. It means section 23 does not govern the sanction. For a judge the position is the one settled in 1991 and worked in chapter 1700: he is a public servant under the corruption law, the President sanctions, and no case may be registered without consulting the Chief Justice of India.

Section 23(4): article 311 and article 320(3)(c) survive

Sub-sections (1) to (3) are without prejudice to the generality of article 311 and article 320(3)(c).

Article 311 protects a civil servant against dismissal, removal or reduction in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. Article 320(3)(c) requires the Union or a State Public Service Commission to be consulted on disciplinary matters affecting a civil servant.

So the Act does not touch the departmental route. A criminal prosecution under the Prevention of Corruption Act and a departmental proceeding under article 311 run on separate tracks, and section 20(3)(b) and section 20(7)(b) both allow the Lokpal to direct the departmental route instead of, or as well as, the criminal one.

Section 24: the Prime Minister, Ministers and members of Parliament

Where, after the conclusion of the investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act 1988 by a public servant referred to in clause (a), (b) or (c) of section 14(1), that is a present or former Prime Minister, a Minister of the Union, or a member of either House, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority.

Why the highest three get their own section. Because for them there is no departmental authority to direct. A Secretary can be proceeded against departmentally; a Minister cannot. So the Act gives the Lokpal a direct route: file the case, and inform the competent authority, which under section 2 is the House of the People for a Prime Minister, the Prime Minister for a Union Minister and the Speaker or Chairman for a member.

Notice what the competent authority receives. A copy of the report and the findings. Not a request for permission. The political authority is informed, not consulted, and that is the difference between this Act and everything that preceded it.

A worked example

The Lokpal completes an investigation into a Minister of the Union and finds a prima facie offence under section 7 of the Prevention of Corruption Act.

Under the old law, before 2014, the prosecution would have needed sanction under section 19 of the Prevention of Corruption Act from the authority competent to remove the Minister from office, which in practice meant the political executive. Cases waited years for it.

Under section 23(1), the Lokpal grants the sanction itself, and the three named provisions do not stand in the way.

Under section 23(2), no court may take cognizance except on that sanction, so nobody can argue that some other sanction was also required.

Under section 24, the Lokpal may file the case in the Special Court and must send a copy of the report and findings to the Prime Minister, who is the competent authority for a Union Minister.

Under section 12(2) and (3), the Director of Prosecution files it and the filing is deemed a report under section 173 of the Code.

Now change the accused to a Judge of the High Court. Section 23(3) takes the matter out of section 23 altogether, because the Constitution prescribes a removal procedure for him. And in any case a judge is not within section 14 at all.

What beginners get wrong

That the Lokpal's sanction is in addition to the Government's. It is instead of it. Section 23(2) makes the Lokpal's the only sanction that counts.

That section 23 abolished sanction. It did not. It moved the decision. The filter against vexatious prosecution of officials remains; it is simply operated by a body that is not the accused's employer.

That section 23(3) makes constitutional office holders immune. It makes section 23 inapplicable to them. Their prosecution is governed by the ordinary law and, for judges, by the safeguards laid down in 1991.

That section 24 requires anybody's permission. It requires the Lokpal to send a copy of its report to the competent authority. Sending a copy is not asking.

Quick revision

s.23(1): notwithstanding s.197 CrPC, s.6A DSPE Act and s.19 Prevention of Corruption Act, the Lokpal grants sanction under s.20(7)(a).

s.23(2): no prosecution and no cognizance for an offence committed while acting or purporting to act in the discharge of official duty except with the previous sanction of the Lokpal.

s.23(3): does not apply to holders of constitutional offices for whose removal the Constitution prescribes a procedure.

s.23(4): without prejudice to article 311 and article 320(3)(c).

s.24: for a present or former Prime Minister, Union Minister or member of either House, the Lokpal may file the case in the Special Court and shall send the report and findings to the competent authority.

The historical point: sanction had rested with the accused's own Government since 1947 and was the standing obstacle the Santhanam Committee identified in 1964. Section 23 moves it.

Test yourself

1. What is sanction for prosecution, why does it exist, and why did it become a problem? It is the requirement that a designated authority permit the prosecution of a public servant for an act done in the discharge of official duty, in section 197 of the Code of Criminal Procedure and section 19 of the Prevention of Corruption Act. It exists to protect officials from vexatious prosecution for taking hard decisions. It became a problem because the authority granting it was the Government employing the accused, so the political executive decided whether its own Ministers and Secretaries could be prosecuted, and sanction was refused or simply not decided.

2. State the effect of section 23(1) and (2). Section 23(1) gives the Lokpal the power to grant sanction for prosecution under section 20(7)(a), notwithstanding section 197 of the Code, section 6A of the Delhi Special Police Establishment Act and section 19 of the Prevention of Corruption Act. Section 23(2) provides that no prosecution may be initiated and no court may take cognizance of an offence alleged to have been committed while acting or purporting to act in the discharge of official duty except with the Lokpal's previous sanction. Together they move the sanction decision from the Government to the Lokpal and make the Lokpal's sanction the only one required.

3. Why do the words "purporting to act" appear in section 23(2)? Because a corrupt act is never genuinely in the discharge of official duty, so a protection confined to acts truly in the discharge of duty would never apply to a corruption case and would be empty. The words bring within the provision the officer who was ostensibly performing his function, which is how the sanction provisions have long been read.

4. Who is excepted by section 23(3) and why? Persons holding office in pursuance of the Constitution for whose removal the Constitution itself prescribes a procedure, such as Judges of the Supreme Court and the High Courts, the Comptroller and Auditor-General, the Chief Election Commissioner and members of the Public Service Commissions. The reason is that an ordinary Act cannot substitute its own route where the Constitution has laid one down.

5. What does section 24 permit the Lokpal to do about a Minister, and what does it require? Where the findings after investigation disclose an offence under the Prevention of Corruption Act by a present or former Prime Minister, Union Minister or member of either House, the Lokpal may file a case in the Special Court. It must send a copy of the report together with its findings to the competent authority, which is the House of the People for a Prime Minister, the Prime Minister for a Union Minister and the Speaker or Chairman for a member. The competent authority is informed; its permission is not sought.