Why is sanction required to prosecute a public servant?

Sanction for prosecuting a public servant is a key aspect of anti-corruption law, designed to shield public servants from unfounded or malicious prosecutions related to actions taken while performing their official duties. Section 197 of the Code of Criminal Procedure (CrPC) stipulates that a court cannot proceed with a case against a public servant unless permission is granted by an authority competent to remove that individual. This protection extends to anyone who 'is or was' a public servant.

A similar requirement is found in Section 6 of the Prevention of Corruption Act, 1947, although this provision applied only while the public servant was in office. No sanction was needed if the individual no longer held the position. Under both the CrPC and the Prevention of Corruption Act (PCA), the State and Central governments have the power to grant prosecution sanction for their employees. This provision was carried forward in Section 19 of the PCA, 1988.

What are the latest provisions on granting sanction?

Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the new code replacing the CrPC, continues the requirement for sanction. The 2018 amendment to the PCA introduced a new provision requiring government approval before starting an investigation. Specifically, under Section 17A, the appropriate authority's approval is necessary to initiate an investigation, while Section 19 requires sanction before a court can take cognizance of a corruption charge or complaint. The 2018 amendment also extends the requirement for sanction to individuals who are no longer public servants.

What is the Governor's role in a case against a Chief Minister?

Sanction provisions in the CrPC generally refer to the State or Central government as the authority responsible for granting sanction for the prosecution of their employees. However, both the 1947 and 1988 versions of the PCA include a clause stating that in the case of "any other person," the sanction would be granted by the authority competent to remove the public servant. Since the Governor has the power to dismiss a Chief Minister, the Governor is seen as the appropriate authority to consider granting sanction for prosecuting a Chief Minister. There has been debate over whether the Governor should exercise discretion or act on the advice of the Council of Ministers when granting such sanctions.

In the A. R. Antulay case, the Supreme Court ruled that the Governor should exercise discretion when deciding whether to grant sanction for prosecuting a Chief Minister, stating that the Governor should act independently and not rely on the Council of Ministers' advice.

What have courts said on the issue?

In a case in Madhya Pradesh involving corruption charges against two Ministers, the Council of Ministers found no grounds for prosecution despite the Lok Ayukta's report confirming the charges. The Governor, however, granted sanction for prosecution, believing there was sufficient evidence. In the case of Madhya Pradesh Special Police Establishment vs. State of MP and others (2004), the Supreme Court upheld the Governor's decision, deeming the Council of Ministers' refusal to grant sanction "irrational."

Follow Up Question

Why was the Hema Committee established?

On the night of February 17, 2017, a prominent female actor was abducted and sexually assaulted by a group of men in a moving vehicle in Kochi. The survivor filed a case the following day. This incident sparked a movement that challenged the established power structures in Malayalam cinema and led to the formation of the Women in Cinema Collective (WCC). In response to demands from WCC members, Kerala Chief Minister Pinarayi Vijayan established a committee, chaired by retired Kerala High Court judge K. Hema, to investigate issues of sexual harassment and gender inequality in the industry. The committee's report, submitted to the Kerala government on December 31, 2019, remained confidential for nearly five years, fueling speculation about its contents. The Department of Cultural Affairs initially denied Right to Information (RTI) requests, citing witness privacy concerns.

On July 6, the State Information Commission ordered the department to release the redacted report by July 25. However, the release was delayed after objections were raised by a producer and one of the witnesses, who approached the Kerala High Court citing privacy issues. The report was ultimately released after the High Court dismissed these objections.

What did the Hema Committee uncover?

Rumors of a "casting couch"—the practice of demanding sexual favors from aspiring actors in exchange for roles—have long circulated in the industry. The report, accessed by The Hindu through an RTI request, confirms the existence of this practice through confidential testimonies from several witnesses. Witnesses provided evidence, including audio clips, video clips, and screenshots of WhatsApp messages.

Some women reported men knocking on their doors at night, sometimes attempting to forcibly enter their rooms. The report details the experiences of women forced to work alongside their abusers, many of whom feared approaching the police or even confiding in family members due to potential repercussions, such as being blacklisted from the industry or facing cyber-attacks.

The report also points out that the Malayalam film industry is dominated by a powerful group of male producers, directors, and actors, referred to by one prominent actor as a "mafia," capable of banning anyone from the industry. Members of the WCC have also faced informal bans for speaking out about these issues. The report highlights the lack of basic amenities like changing rooms and toilets for junior artistes on sets, particularly in outdoor locations, which has led to urinary infections among many women. It extensively documents the plight of junior artistes, who endure long working hours for minimal pay, likening their conditions to those of slaves.

Compared to other South Indian film industries, the Malayalam industry typically operates on lower budgets, although its expanding market in recent years has led to increased investments.

What has the committee recommended?

The committee's key recommendations include the enactment of legislation and the establishment of a tribunal to address the issues faced by women in cinema. It also notes that an Internal Complaints Committee (ICC) may not be effective, as influential individuals could intimidate or coerce ICC members into handling complaints unfairly. The report suggests that film production units should provide temporary toilet facilities and changing rooms.

The report also identifies significant barriers for women in the technical aspects of cinema, where their representation is notably low. For instance, at the K.R. Narayanan National Institute of Visual Science and Arts, a film institute, only two women were enrolled out of 44 students in the technical departments during the years reviewed by the committee. The report recommends reservations and scholarships for women in film schools.

How has the State government responded to the report?

Legal experts suggest that the findings in the report justify the government's initiation of a special investigation. Opposition parties, which have criticized the government for delaying the report's release, have called for an investigation led by an all-women team of senior police officers. Chief Minister Vijayan has stated that the government will take decisive action if any witnesses who testified before the committee come forward with complaints against their alleged persecutors. Meanwhile, a division bench of the Kerala High Court has directed the government to submit the entire committee report in a sealed cover and requested the government's stance on the actions to be taken. The case is scheduled for further hearing on September 10

Follow Up Question

After the tragic rape and murder of a doctor on duty at Kolkata’s R.G. Kar Medical College and Hospital on August 9, there has been a strong demand for the death penalty for the accused. The Justice J.S. Verma Committee, whose recommendations led to the 2013 amendments in criminal laws, had explicitly stated that it did not support the death penalty for rape, even in the rarest of rare cases. The committee emphasized that pursuing the death penalty would be a backward step in terms of sentencing and reform.

What was the Union Cabinet's decision?

When the Union Cabinet approved an ordinance on sexual assault in 2013 and passed the criminal amendments into law, it chose not to adopt the committee’s recommendation against the death penalty. The Justice Verma Committee was formed in response to the horrific gang rape of a paramedic student in Delhi on December 16, 2012, and it presented its recommendations on January 23, 2013. However, the committee's key recommendation—that the death penalty may not effectively deter such crimes—was not accepted.

Significant amendments were introduced, including the death penalty for rape that results in the victim’s death or leaves her in a persistent vegetative state (under Section 376A of the Indian Penal Code) and for repeat offenders (Section 376E). In 2018, additional changes allowed for the death penalty for those involved in gang rapes of victims under 12 years old (Section 376DB) and life-long imprisonment for those convicted of raping victims under 16 (Section 376DA). The new Bharatiya Nyaya Sanhita includes various sections, such as 64, 65, and 70(2), which specify that the death penalty is the punishment for gang rape of a woman under the age of 18.

What did the committee recommend?

The Justice Verma Committee recommended enhanced sentences for rape, increasing the minimum sentence from 7 years to 10 years, 20 years, or life, but stopping short of the death penalty. The committee specified that those who leave a victim in a persistent vegetative state should face rigorous imprisonment for at least twenty years, potentially for life, meaning the rest of their natural life. The committee also argued that the supposed deterrent effect of the death penalty on serious crimes is a myth, citing evidence from the Working Group on Human Rights that the murder rate in India has consistently declined over the past 20 years despite a reduction in the execution of death sentences since 1980.

What was the stance on marital rape?

The Verma Committee recommended removing the exception for marital rape, asserting that a marital or other relationship between the perpetrator and the victim should not serve as a defense against rape or sexual violation. The committee agreed with the European Commission of Human Rights’ judgment in C.R. vs U.K., stating that a rapist remains a rapist regardless of his relationship with the victim. However, the Union government did not follow this recommendation and refused to criminalize marital rape. Under the Bharatiya Nyaya Sanhita, Exception 2 of Section 63 states that sexual intercourse or acts by a man with his wife, as long as the wife is not under 18 years of age, is not considered rape.

What about gender rights?

The Verma Committee highlighted that women’s empowerment goes beyond political equality and must also encompass social, educational, and economic equality. True empowerment requires that both law and public policy engage fully with women’s rights, opportunities, skill acquisition, and the ability to demand total equality in relationships with both society and the state. The committee noted that correcting gender-biased social mindsets is more dependent on social norms and that this change must be driven by societal leaders with support from necessary systemic changes in education and societal behavior

Follow Up Question

1.Which of the following statements about the death penalty in India is/are correct?

1. The Justice J.S. Verma Committee recommended the death penalty for the crime of rape, considering it an effective deterrent.
2. The 2013 criminal law amendments introduced the death penalty for certain categories of rape cases, including those resulting in the death of the victim or leaving the victim in a persistent vegetative state.
3. The Supreme Court of India has ruled that the death penalty should be awarded only in the "rarest of rare" cases.

Select the correct answer using the code given below:

A) 1 and 2 only
B) 2 and 3 only
C) 1 and 3 only
D) 1, 2, and 3