Prior Sanction to Prosecute Public Servants Under PMLA | 11 Nov 2024
Why in News?
The Supreme Court (SC) of India recently upheld a decision by the Telangana High Court, mandating that public servants must receive prior government sanction before being prosecuted under the Prevention of Money Laundering Act (PMLA), 2002.
- This decision clarifies that Section 197(1) of the Code of Criminal Procedure, 1973 (now replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023), which mandates prior government sanction to prosecute public servants, also applies to PMLA cases.
What is Section 197(1) of CrPC?
- It mandates prior government sanction before prosecuting public servants, judges, or magistrates for actions performed in their official duties.
- This aims to prevent malicious prosecutions and protect decision-making in good faith. The sanction must come from the Central Government for Union-affiliated individuals and from the State Government for those in State affairs.
- Exceptions: Specific crimes, particularly those involving gender-based violence and sexual offences under the Indian Penal Code, 1860 (BNS, 2023) do not require prior sanction for prosecution of public servants.
How Does the PMLA Interact with the CrPC?
- Section 65 of PMLA: Provides for CrPC provisions to apply to PMLA cases unless they conflict with the PMLA itself.
- Section 71 of PMLA: Asserts that PMLA provisions have overriding authority over other laws in cases of inconsistency.
- Supreme Court’s Ruling: The appellant Enforcement Directorate (ED) had argued that Section 71 of the PMLA, which gives the PMLA overriding authority over other laws, should exclude the prior sanction requirement. However, the SC rejected this claim.
- The SC held that Section 197(1) of the CrPC is not inconsistent with the PMLA, thus requiring its application in cases involving public servants under the PMLA.
- It further clarified that Section 71 cannot nullify Section 197(1), as doing so would render Section 65 of the PMLA redundant.
- Implications of SC Ruling: This sets a benchmark for applying the CrPC to PMLA cases, clarifying the limits of the PMLA’s overriding authority under Section 71.
- The judgement limits the ED's ability to prosecute public servants under PMLA without government consent, highlighting the need for due process.
- The SC ruling balances the government’s efforts to combat money laundering with the rights of public servants to fair legal procedures.
Note: In the CBI v. Dr. R.R. Kishore Case, 2023, the SC ruled that Section 6A of the Delhi Special Police Establishment (DSPE) Act, 1946, requiring prior government sanction for arresting officers of joint secretary rank and above, was unconstitutional.
- The SC held that such a law is void ab initio under Article 13(2) of the Constitution and rendering Section 6A invalid from its inception in 2003.
Constitutional Protection for Civil Servants
- Part XIV of the Constitution: Deals with services under the Union and the States.
- Article 309: Empowers Parliament and State legislatures to regulate the recruitment and conditions of service for civil servants.
- Doctrine of Pleasure: Article 310 states civil servants hold office at the pleasure of the President or Governor, but this power is not absolute.
- Article 311: It lays down two major safeguards for civil servants.
- Dismissal or removal can only be done by the appointing authority or a higher rank.
- Dismissal or reduction in rank requires an inquiry with a reasonable opportunity to defend.