Joginder Singh Toor

THE cardinal aspect of the Constitution of India enshrined in Article 14 is the same as in the Constitution of United States of America incorporated by its 14th amendment. The U.S. law has constitutional guarantee that no person or group will be denied such protection under the law as is enjoyed by similar persons or groups i.e. persons similarly situated must be treated similarly. It prohibits States from denying any person the equal protection of the laws. Indian Constitution provides, “the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.”

It emerged in the United State of America from a situation which prevailed until mid 20th century arising out of racial discrimination because of GRANDFATHER CLAUSES i.e. constitutional provision enacted by seven southern States denying suffrage to African American men. It exempted descendants of men who voted before 1867 from meeting new literacy and property requirements for voting. The U.S. Supreme Court declared such clauses un-constitutional in 1915. The Constituent Assembly of India introduced the same healthy aspect, in the same words as in the U.S. Constitution.

While enacting penal laws, the Government of India when ruled by the British, exempted certain categories of citizens from being prosecuted except with the permission of the Government. The persons engaged in the affairs of the Central or the State Governments, if committed offence mentioned in various provisions of the Indian Penal Code, can be prosecuted only at the instance of a public servant and that too with the prior sanction of the concerned government or authority.

The criminal law otherwise can be set in motion by any person may he not be directly concerned, with the crime as complainant or witness. But in respect of public servants and certain offences a bar has been created and the Courts have been debarred from taking cognizance of any offence punishable under the Sections mentioned in Section 195, 196 and 197 of the Criminal Procedure Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate or on the complaint in writing by a court.

Prevention of Corruption Act enacted in 1947, was re-enacted in 1988, to provide punishment for preventing corruption by public servants. The prosecution for certain offences under this Act also cannot be launched except with the prior sanction of the concerned government or the authority.

A trend is emerging in the Indian polity, to use arbitrary powers for granting or refusing sanction to prosecute public servants. In a number of cases public servants, including Ministers, bureaucrats, high police officers have been found by the investigating agencies having committed serious offences. But the prosecution could not be launched, either for want of sanction or for delay in granting the same in an arbitrary manner.

The equality provided in Article 14 of the Constitution of India before law, contemplates that nobody is above law. The provision is being blatantly violated. Persons in power avoid prosecution by managing that sanction to prosecute is delayed, denied or avoided, thus they stand above law.

In case of Judges of the High Court and the Supreme Court, a new situation emerged with a decision in K.Veeraswamy’s case, who while holding the post of Chief Justice of Madras High Court challenged his prosecution initiated by C.B.I. by registering a case that he was living beyond sources of his income and was culpable under the Prevention of Corruption Act. The High Court refused to quash the criminal proceeding, he moved the Supreme Court.

The Supreme Court in words and phrases couched in idealism almost created a GRANDFATHER CLAUSE giving unto itself the powers which according to Justice K.Jagannatha Shetty vested in the President virtually being the appointing authority of Judges of the High Court and the Supreme Court. The dissenting note of Justice Shetty sounds more akin to the doctrine of equality before law. The Supreme Court held that “the Chief Justice of India is a participatory functionary in the matter of appointment of judges of the Supreme Court and the High Court…… Secondly the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary.

Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion. We, therefore, direct that no criminal case shall be registered u/s 154 Cr.P.C against a judge of the High Court, Chief Justice of High Court, Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered.”

This has become hurdle in prosecuting Judges who are found lacking in integrity and living beyond their means.

In a recent case, the C.B.I. had to file an application before the Court that the case against Justice Nirmal Yadav be closed not because of lack of evidence against her but because the Chief Justice of India has refused to give sanction. Reports are emerging that the C.B.I. has ample evidence to prosecute not only the Judge but the accomplices also. The satisfaction of the Chief Justice as to the justifiability of launching a prosecution is unquestionable. It has become a GRANDFATHER CLAUSE which prohibits the erring judges from being prosecuted. It will have to be removed either by way of constitutional amendment or in some other manner.

A trend has unfortunately emerged refusing sanction arbitrarily when there is a case found against a Minister, a bureaucrat, high police officer and other influential public servant holding prestigious post. It is denial of equality before law and violation of Article 14 of the Constitution of India. A certain class has emerged as the one above law. It is an unfortunate trend likely to degenerate the guaranties given under the Constitution to the people of India and the very concept of rule of law.

[Joginder Singh Toor is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

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