Prior Sanction for Prosecution

Relevance: The New Delhi government recently granted sanction for the prosecution of Kanhaiya Kumar in a pending sedition case.

The law provides that for prosecution under certain offences, a prior sanction from the government would be required. 

Pointers:

  • The requirement of prior sanction by the government is a vital procedural safeguard against frivolous prosecution.
  • A police officer’s understanding of the offence should be subject to the government’s scrutiny so that these provisions are not unlawfully used against free speech
  • Some of the offences, prosecution under which requires prior sanction (under Section 196 of the Criminal Procedure Code) include – “offences against the state” in the Indian Penal Code, as well as “conspiracy” to commit them, Section 153A –(promoting enmity between different groups) and Section 295A (malicious acts intended to outrage religious feelings).

 

Duties of the sanctioning authority:

  • Giving sanction is not a mechanical process, but requires application of mind.
  • Law imposes a duty on the government concerned to apply its mind to the facts of each case and render a decision based on its assessment whether, prime facie, a case has been made out. 

The sanction requirement has seen criticism in corruption cases. The discretion to grant sanction is sometimes unduly used to to shield corrupt public servants. 

Source: The Hindu

Practice Question: As per the criminal laws in India, prior sanction by the government is required for prosecution under certain offences. Why do you think such a requirement is included? Name at-least two offences prosecution under which requires such ‘prior sanction’ to be obtained. – 150 words.

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