by AS CLICHE AS IT MAY SOUND, the quote “power tends to corrupt and absolute power corrupts absolutely” captures the malady of governance afflicted by unbridled power and poor standards of accountability. Though the Constitution of India recognises ‘equality before the law’ as a fundamental right and enshrines the concept of a limited government, several provisions of law continue to grant immunity to the State’s agents from prosecution for offences committed against citizens.
Among other laws, the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) and the erstwhile Code of Criminal Procedure, 1973 (‘CrPC’) embody such immunity by restricting the courts’ power to take cognizance of offences committed by public servants. The BNSS (Section 218) and the CrPC (Section 197) stipulate that if a public servant is accused of committing a crime “while acting or purporting to act in the discharge of his official duty”, no court shall take cognizance of the offence unless the government has accorded sanction to prosecute the public servant.
The Supreme Court and the High Courts have delivered divergent judgments on the scope of immunity enjoyed by public servants under these provisions. This piece analyses the flawed legislative design of provisions pertaining to sanction for prosecution, the ramifications of divergent judicial opinions by benches of the same strength and the pressing need for reforming the law on sanction for prosecution.
