Concept of Prior Sanction
Public officials need to be protected from frivolous legal harassment for actions done in their official capacity. For this, police authorities and courts are mandated to get prior approval/sanction from the government before investigation or prosecution, as the case may be, in cases involving public officials.
Sanction before prosecution in criminal cases
The Code of Criminal Procedure (CrPC) provides for prior sanction by the state or central government before prosecution of a public official in any court. It, however, allows for investigation of crimes done by a judge, magistrate, public servant in the course of official duties without requirement of a prior sanction.
Note that the investigation involves only the fact finding exercise by police, while the prosecution involves legal proceedings in a court of law.
Sanction before investigation in corruption cases
The Prevention of Corruption Act 1988 contains a provision that makes it mandatory to get prior sanction before investigation of any public official in a corruption case filed under this act. A 2013 judgement by the Supreme Court removed ambiguities regarding this provision, and reaffirmed that prior government sanction is mandatory before a corruption investigation.
State level laws on prior sanction
Since the Criminal Procedure is a subject in the concurrent list, the states of India have the power to make their own amendments to the CrPC applicable in their respective states, as far as it does not negate the central version. Also, the CrPC does not extend to the state of Jammu and Kashmir, and applies differently (with limitations) to some states of the Northeast.
Maharashtra has made an amendment to CrPC that mandates prior sanction before investigation in any case involving a public official. It also requires the press to get prior sanction before publishing details of a corruption case.
In 2017, Rajasthan introduced an amendment in CrPC via an ordinance that went much harsher than the Maharashtra law. It mandated not just prior sanction before investigation, but also severely curbed the freedom of the press by prescribing imprisonment for anyone who publishes details of a corruption case without the government’s permission. The ordinance was withdrawn after criticism and backlash from the press and civil society.