Criminal laws in India by way of “sanctions” allow for protective discrimination in favour of public officials.[1]  Under various laws, sanctions are required to investigate and prosecute public officials.  Over the past 15 years these provisions of law have been revisited by the judiciary and the legislature.  Recently the Supreme Court in the Subramanian Swamy Case has suggested the concept of a deemed sanction.  We look at the history of the requirement of sanction under criminal laws. Requirement of sanction to investigate certain public servants of the union government was introduced through a government notification[2].   The Criminal Procedure Code 1973 and the Prevention of Corruption Act 1988 provide that to prosecute a public servant, permission or sanction has to be secured from the government (central or state) for which the official works. Arguments that are often advanced in favour of such sanctions are that these ensure that (a) frivolous and vexatious cases are not filed, (b) public officials are not harassed, and (c) the efficacy of administrative machinery is not tampered with.  Further, the requirement of sanction to investigate was also defended by the government before the Supreme Court in certain cases.  In Vineet Narain vs. Union of India 1997[3], the government had argued that the CBI may not have the requisite expertise to determine whether the evidence was sufficient for filing a prima facie case.  It was also argued that the Act instituting the CBI, Delhi Special Police Establishment Act 1946 (DSPE Act), granted the power of superintendence, and therefore direction, of the CBI to the central government.   The Court in this case struck down the requirement of sanction to investigate.  It held that “supervision” by the government could not extend to control over CBI’s investigations.  As for prosecution, the Court affixed a time frame of three months to grant sanction.  However, there was no clarity on what was to be done if sanction was not granted within such time. Following that judgment, the DSPE Act was amended in 2003, specifically requiring the CBI to secure a sanction before it investigated certain public servants.  More recently, the Lokpal and Lokayukta Bill, 2011 that is pending before the Rajya Sabha, removed the requirement of sanction to investigate and prosecute public servants in relation to corruption. Recently, Mr. Subramanian Swamy approached the Supreme Court for directions on his request for sanction to prosecute Mr. A Raja in relation to the 2G Scam.  As per the Supreme Court, judgment in Subramanian Swamy vs. Dr. Manmohan Singh & Anr, Mr. Swamy’s request was pending with the department for over 16 months.  The Supreme Court held that denial of a timely decision on grant of sanction is a violation of due process of law (Right to equality before law read with Right to life and personal liberty).  The Court reiterated the three month time frame for granting sanctions.  It suggested that Parliament consider that in case the decision is not taken within three months, sanction would be deemed to be granted.  The prosecution would then be responsible for filing the charge sheet within 15 days of the expiry of this period.


[1] Subramanian Swamy vs. Dr. Manmohan Singh & Anr. Civil Appeal No. 1193 of 2012 dated January 31, 2012

[2] Single Directive, No. 4.7.3

[3] AIR 1998 SC 889

Recently the government released draft rules under the Right to Information Act for consultation before it finalised them.  This process of public consultation on draft rules is a welcome step which is not often followed. Many Acts passed by Parliament 'delegate' the power to make rules and regulations to the executive (government and regulatory bodies such as RBI and TRAI).  The reason is that these rules may need to be changed at frequent intervals (such as, say specifications on food labels), and may not need the time and expense required for amendment to the Act by Parliament.  However, Parliament retains for itself the power to examine these rules.  Most Acts passed by Parliament provide that rules framed under them will be laid before the Parliament.  Any Member of Parliament may demand a discussion on the rules and a vote to modify or nullify them. In practice, a large number of rules are laid before Parliament, making it very difficult for Parliamentarians to examine them effectively.  In the last session of Parliament, more than 1500 documents were laid before Parliament.  No discussion on specific rules has taken place in Parliament in the 14th and 15th Lok Sabha (2004-10). Both the Lok Sabha and Rajya Sabha also have Committees on Subordinate Legislation to examine these rules.  Out of 1515 rules, regulations, circulars and schemes laid before Lok Sabha between 2008 and 2010, the Committee has examined 44 documents.  This amounts to only 3% of the afore-mentioned documents laid before the Lok Sabha. It is important that Parliament oversee the power to make rules that it has delegated to the government.  For that, it needs to invest in strengthening the research staff of the committee on subordinate legislation as well as provide research stafff to MPs.