Tuesday, May 26, 2009

Allahabad High Court hearing on impunity provision

The CBI is about to begin arguments before the Allahabad High Court in the Taj Heritage Corridor case. The agency has to justify its decision not to prosecute Chief Minister Mayawati. It appears to be hiding behind impunity provisions in the Criminal Procedure Code to suggest that it does not have official sanction to prosecute. Surprisingly, it appears to be telling a High Court not to follow the Supreme Court's ruling in Parkash Singh Badal v State of Punjab (2006) which created two small exceptions to impunity provisions. The first exception was that former public servants cannot be protected by impunity provisions (the preceding Lok Sabha tried to undo this exception by passing an amendment Bill in 2008, but thankfully was dissolved before Rajya Sabha cleared it, and the Bill died. See this article for further details). The second exception, which the CBI is arguing against in this case was expressed by the Supreme Court in Badal case thus:

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.


If newspaper reports are to be relied upon, the CBI is basically arguing against the doctrine of precedent: 'the Supreme Court ruling in one particular case cannot be referred to as a general law.' This is not to say that there is not a practical difficulty with this second exception: whether the act was for the public servant's own pleasure or benefit is usually apparent only after a trial. This exception therefore requires the magistrate to accept a prima facie case that that is so, before taking cognizance in the absence of official sanction.

Venkatesan points out another controversy relating to impunity provisions in Kerala, where the issue is whether the Governor is bound by the advice of the Council of Ministers to refuse sanction for prosecution. Another SC precedent allowing the Governor to do so in case the Council of Ministers has not acted bona fide is in issue [M.P. Special Police Establishment v. State of M.P 2004 (8) SCC 788 -- I am only citing from the news report, have not read the case myself yet.]

While these exceptions demonstrate understandable judicial frustration with impunity provisions, it is high time our courts realise that impunity provisions are unconstitutional per se.

One also hopes that this time the PM finally has enough political authority to push through his proposal of creating a separate prosecutorial authority, independent of the CBI. (See also this previous post on this blog).

3 comments:

K.V.DHANANJAY said...

Its really time that our Supreme Court deal with and resolve a host of petitions dealing with this very issue.

A large number of petitions - challenging the competence of a High Court, in exercise of its jurisdiction under Article 226, to Order the CBI to investigate into an offence committed within its jurisdiction notwithstanding Section 6 of the DSPE Act (the charter for the CBI) that necessitates the consent of the State Government in order to probe an offence committed within that State - are awaiting Judgment and one hopes that the Constitution Bench formed to resolve these cases will deliver its verdict at the earliest.

On every working day in this country, some High Court or the other is directing the CBI to investigate some office within that State and it is absolutely imperative to resolve this controversy at the earliest.

Section 19 of the PC Act, 1988 is absolutely unconstitutional as it vests a judicial function in an executive without imposing the requirements that a judicial officer must abide by.

tarunabh said...

Dear Dhananjay, could you please give a link to the constitutional bench case you refer to? Is it before the SC?

K.V.DHANANJAY said...

Its at the Supreme Court. Don't ever try to trace the history of this litigation - its simply too convoluted. It arose several decades ago. Was partly answered by the Supreme Court. Years later, it then came back again to the Supreme Court. After a Bench was constituted to look into this, parties cited a particular judgment and asserted that the matter was thereby settled. The case at hand was dismissed. Years later, some other party came to the Court and stated that the matter was still not resolved. Another Bench was constituted to look into it. It felt that the prior Bench could not have been satisfied with the authority presented to it as the precedent had nothing whatsoever with the subject at hand. So it goes...

Civil Appeals 6249-6250 of 2001.
State of West Bengal v. Committee for Protection of Democratic Rights and Ors. (heard with numerous other petitions)

I just wonder if there is something elusive in this country concerning litigation that involves high profile politicians. It seems to go on for ever...


A Constitution Bench has reserved its Judgment on this matter on 11-Dec-2008. You will find the details here:

http://courtnic.nic.in/supremecourt/temp/ac%206249-625001p.txt

I am certain that a large number of high profile accused in various High Courts would salivate to see the Supreme Court hold that the CBI lacked jurisdiction to proceed in accordance with the directions of the High Court unless it obtained consent of the State Government in every such case. What they forget however, is that the Orders of a Court have no retrospective operation and unless a specific objection was taken to the jurisdiction of the CBI before the High Court, an Order was secured on the validity of that objection and an unfavourable verdict was appealed to a higher Court, the accused in such cases would not benefit from any favourable judgment in the SC case.