IMPORTANT POINTS
Requirement of sanction under section 19, PC Act is not unconstitutional.
Decision on issue of sanction should be taken expeditiously maintaining a fine balance between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand.

JUDGMENT :

Adarsh Kumar Goel, J.

1. This petition, by way of public interest litigation, seeks direction to declare Section 19 of the Prevention of Corruption Act, 1988 (“PC Act”) unconstitutional and to direct prosecution of all cases registered and investigated under the provisions of PC Act against the politicians, M.L.As, M.Ps and Government officials, without sanction as required under Section 19 of the PC Act.

2. According to the averments in the writ petition, the petitioner is a practising advocate in the State of Jammu & Kashmir. In the said State, several Government officials have been charged for corruption but in the absence of requisite sanction, they could not be prosecuted. Referring to several instances including those noticed by this Court in various orders, it is submitted that the provision for sanction as a condition precedent for prosecution is being used by the Government of India and the State Governments to protect dishonest and corrupt politicians and Government officials. The discretion to grant sanction has been misused.

3. The petition refers to various orders of this Court where incumbents were indicted but not prosecuted for want of sanction. In Common Cause, a registered Society vs. Union of India & Ors. (1996) 6 SCC 593, Captain Satish Sharma, the then Minister for Petroleum and Natural Gas was held to have acted in arbitrary manner in allotting petrol pumps but since sanction was refused, he could not be prosecuted. In Shiv Sagar Tiwari vs. Union of India & Ors. (1996) 6 SCC 599, Smt. Shiela Kaul, the then Minister for Housing and Urban Development, Government of India was indicted for making arbitrary, mala fide and unconstitutional allotments but still she could not be prosecuted. In M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors., (2007) 1 SCC 110, Ms. Mayawati, the then Chief Minister of U.P. and Shri Nasimuddin Siddiqui, the then Minister for Environment, U.P. were indicted and allegations against them were noticed but they could not be prosecuted in the absence of sanction. It is further stated that in Prakash Singh Badal & Anr. vs. State of Punjab & Ors., 2007 (1) SCC 1, Lalu Prasad @ Lalu Prasad Yadav vs. State of Bihar Thr. CBI(AHD) Patna 2007 (1) SCC 49 and K. Karunakaran vs. State of Kerala 2007 (1) SCC 59, validity of requirement of sanction was not gone into on the ground of absence of challenge to its validity. In Shivajirao Nilangekar Patil vs. Mahesh Madhav Gosavi (Dr.) & Ors. (1987) 1 SCC 227, this Court noticed that there was a steady decline of public standards and morals. It was necessary to cleanse public life even before cleaning the physical atmosphere. The provision for sanction under the PC Act confers unguided and arbitrary discretion on the Government to grant or not to grant sanction to prosecute corrupt and dishonest politicians, M.Ps, M.L.As and Government officials.

4. In response to the notice issued by this Court, affidavits have been filed by several State Governments and Union Territories but no counter affidavit has been filed by the Union of India. The stand taken in all the affidavits is almost identical. According to the said stand, the object of Section 19 of the PC Act is to protect public servants against irresponsible, frivolous and vexatious proceedings for acts performed in good faith in the discharge of their official duties and to protect them from unnecessary harassment of legal proceedings arising out of unfounded and baseless complaints. In the absence of such a provision, the public servant may not be inclined to offer his/her free and frank opinion and may not be able to function freely.

5. We have heard Mr. D.K. Garg, learned counsel for the petitioner and Mr. P.S. Narasimha, learned Additional Solicitor General for the Union of India and learned counsel for various States.

6. Section 19 of the PC Act is as follows:-

“19. Previous sanction necessary for prosecution.—

(1) No court shall take cognizance of an offence punishable under sec