Taking the President seriously: Indian President’s power to grant sanction of prosecution against the Prime Minister

In India, it is generally assumed that the President has no specific powers and acts as per the aid and advice of the Council of Ministers headed by the Prime Minister in the exercise of his powers and functions and can only once send the advice back to the Council of Ministers for its reconsideration and thereafter he is bound to act as per the reconsidered advice of the Council of Ministers. However as no time limit is prescribed in the Constitution during which the President has to act on the advice of the Council of Ministers, the President may also put the ministerial advice on hold for an indefinite period of time and thus may delay the final decision of the Cabinet. But generally, the President acts quickly and reasonably on the ministerial advice and does not sit on the decisions of the Government.

After the Samsher Singh judgment, and 42^nd and 44^th Constitutional Amendments, it is now well-established that the President is a constitutional head of the Union Government who is generally obligated to act on the aid and advice of the Council of Ministers in the exercise of his functions conferred upon him by the Constitution. But despite this position the President is not a rubber stamp or a cipher and may act on his own discretion in certain cases such as appointment of the Prime Minister in a hung Lok Sabha, dissolution of the Lok Sabha, and dismissal of the Government when it loses the support of majority and refuses to quit. These are just some examples. There may be, and in fact are, some more situations where the President can act on his own discretion. In other words, he can disregard the advice of the Council of Ministers and can take a different view. This position clearly indicates that the President is not a rubber stamp at all.

2. Power to grant sanction of prosecution against the Prime Minister and other Ministers

A new category of powers which the President may have to act without receiving the advice of the Council of Ministers seems to be emerging under special laws such as the Prevention of Corruption Act, 1988. This is a very powerful weapon in the hands of the President to control an unruly Prime Minister who faces serious charges of corruption. The matter pertaining to the grant of sanction of prosecution against the Prime Minister has been a controversial issue in the country since the days of Prime Minister Rajiv Gandhi when this issue had been captured by the prominent newspaper on their front pages. Prime Minister Gandhi had some problems with the then President Zail Singh and rumours were spread that the latter had even made up his mind to dismiss the former. Prime Minister Dr. Manmohan Singh also faced this problem for his so-called involvement in the Coalgate scam. A Union Minister of UPA-2 Government was also prosecuted for his involvement in a scandal and a renowned public figure namely Dr. Subramaniam Swamy had approached the President for granting sanction of prosecution against that Minister. When any request comes to the President for granting sanction of prosecution against the Prime Minister or any minister, the President is constitutionally empowered to decide that matter on his own discretion, that is, independently of the advice of the Council of Ministers headed by the Prime Minister because no impartial and unbiased decision is expected from the Council of Ministers in such a situation against its own member. In the present paper, all the pros and cons of the matter would be examined in the light of judicial interpretation.

If the sanction of the President of India is sought to prosecute the Prime Minister or any Minister against whom prima facie charges of corruption exist but the Council of Ministers advises the President not to grant such sanction or the Council of Ministers evades to take a view on that matter due to some political considerations, the President may grant such sanction on his own discretion because the Council of Ministers cannot be a judge in its own cause when serious charges of corruption are leveled against the Prime Minister, who is its head, or against any of its members. The President is the guardian of the Constitution and under Article 60 of the Constitution; it is his duty to see that the Government is carried on in accordance with the Constitution and the law and if he fails to protect the Constitution and the law, he may be impeached by the Parliament under Article 61 of the Constitution. The President cannot argue that the Council of Ministers compelled him to do some unconstitutional act. The President cannot remain a silent spectator when the Prime Minister or other Ministers are involved in corruption and some citizen approaches him to grant sanction of prosecution against the Prime Minister. The President is fully empowered to get necessary information from the Prime Minister under Article 78 of the Constitution relating to the affairs of the Union Government and the Prime Minister is duty bound to furnish such information to the President. If the President is satisfied about the evidence, he can proceed against the Prime Minister.

As stated earlier, by the Samsher Singh v. State of Punjab, judgment now it is well-settled that the President is a constitutional head of the Union Government and he is bound to act on the aid and advice of the Council of Ministers headed by the Prime Minister in the exercise of his powers and functions conferred upon him by the Constitution, but it is equally well-established that the President is not a rubber stamp and in some specific situations he can act independently of the advice of his Council of Ministers.

The 42nd Constitutional Amendment Act, 1976 has incorporated the Samsher Singh ruling in Article 74(1) of the Constitution and by this amendment it has been made mandatory on the part of the President to act on the aid and advice of the Council of Ministers in the exercise of his functions.  He is also bound to have a Council of Ministers even if the Lok Sabha is dissolved and he cannot act without the ministerial advice. If he acts without ministerial advice, he may be impeached for violating the Constitution and his acts may also be set aside by the court of law. As mentioned earlier, the 44th Constitutional Amendment Act, 1978, has given a limited choice to the President to return the advice of the Council of Ministers once for its reconsideration but thereafter he is bound to act on the reconsidered advice of the Council of Ministers. However, there is a silence in the Constitution regarding the time limit during which the President has to act on the ministerial advice and as no time limit has been prescribed in the Constitution during which the President has to act on the ministerial advice, taking the advantage of this lacuna the President can put any ministerial action on hold for an indefinite period of time and can frustrate the ministerial action. But it is a risky business and it also depends on the personality of the individual who holds the highest constitutional office of the country and what kind of reputation he holds in the country. President Zail Singh is said to have exercised this option in case of Indian Post Office Amendment Bill, 1986 which had created a big constitutional controversy in the country.

3. President is the appointing authority of the Prime Minister and his colleagues

Under Article 75(1) of the Constitution, it is the President who appoints the Prime Minister and other Ministers, on the advice of the Prime Minister. Being the appointing authority of the Prime Minister and other Ministers, the President can also dismiss them as they hold office during the pleasure of the President.  But he cannot dismiss them on his own will generally when they retain the support of majority in the House. It is constitutionally justifiable that the President can grant sanction of prosecution against the Prime Minister or any of his colleagues under the Prevention of Corruption Act which needs the sanction of appointing authority. The Prime Minister and other ministers are public servants who are covered under the anti-corruption law.

The President cannot expect a fair advice from the Council of Ministers in respect of sanction of prosecution against its own head or its member because no Council of Ministers would like to brand itself as corrupt because that would give an opportunity to the opposition to attack it which will have far reaching political consequences. Hence, it is submitted that the President can decide such kind of matter in his own discretion. Renowned constitutional law scholar Professor T. K. Tope also supports this view and argues that the President can accord sanction of prosecution against the Prime Minister on his own discretion. This is what Professor Tope states in this regard:

It is submitted that in case such a situation arises when permission for prosecution of Prime Minister is required, such permission will have to be obtained only from the President of India. It is true that there is no specific constitutional discretionary power of the President of India; even then such a power is inherent in the office of the President. Moreover, in the Samsher Singh’s case, the Supreme Court while mentioning the circumstances under which the President or the Governor will exercise his power without consulting the Prime Minister or the Chief Minister has stated that the circumstances mentioned therein are not exhaustive. However, it must be stated that there is neither any constitutional provision nor any judicial pronouncement regarding a remedy in case such permission is refused by the President or the Governor, as the case may be(Sujata V. Manohar, T. K. Tope’s Constitutional Law of India, 3rd Edition, 2010, at 774).

However, on the other hand, there are some authorities who take a contrary view and opine that the President cannot be allowed to grant sanction of prosecution against an elected Prime Minister commanding majority support of the Lok Sabha unless and until the evidence against the Prime Minister is established in a court of law as it was done in Antulay’s case. Eminent constitutional law scholar Mr. Seervai has states in this regard:

It would be surprising if a power of this nature was entrusted to the President- a power in effect to remove or incapacitate a Prime Minister elected by the people and commanding the confidence of the House. This is not to say that the Prime Minister is not amenable to criminal law for committing crimes under the ordinary law: e.g. cheating or assault. But then he is presumed to be innocent till he is proved to be guilty.

4. Judicial approach

The author’s view is also supported by the Supreme Court’s judgments delivered in State of Maharashtra v. R. S. Naik, and M.P. Special Police Establishment v. State of M.P wherein the Supreme Court has clearly observed that the Governor has power to grant sanction of prosecution against any Minister or Chief Minister in his individual judgment, and in such matters he is not required to act on the advice of his Council of Ministers.  In State of Maharashtra v. R. S. Naik, the Supreme Court observed:

If in the existing case, the entire Council of Ministers becomes interested in the use of the statutory power one way or the other, the doctrine of necessity will fill up the gap by enabling the Governor by dispensing with the advice of his Council of Ministers and take a decision of his own on the merits of the case. Such a discretion of the Governor must be implied as inherent in his constitutional powers. The doctrine of necessity will supply the necessary power to the Governor to act without the advice of the Council of Ministers in such a case where the entire Council of Ministers is biased. In fact, it will be contrary to the Constitution and the principles of democratic Government which it enshrines if the Governor was obliged not to act and to decline to perform his statutory duties because his Ministers had become involved personally. For the interest of democratic Government, and its functioning, the Governor must act in such a case on his own. Otherwise, he will become an instrument for serving the personal and selfish interest of his Ministers.

Later, in M.P. Special Police Establishment v. State of M.P. a Constitution Bench of the Supreme Court reiterated this view and held:

Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on the aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst conceding grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.

If on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law in as much as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prime facie case is clearly made out. If in cases where a prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.

The Court went on to observe:

We also presume that a high authority like the Council of Ministers will normally act in a bona fide manner fairly, honestly and in accordance with law. However, on those rare occasions where on facts the bias becomes apparent and or the decision of the Council of Ministers is shown to be irregular and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction.

It is submitted that when by way of implication the reasoning of these judgments is applied to a case where the President has to decide any matter pertaining to the sanction of prosecution against the Prime Minister or any Union Minister where the fair advice is not expected to be received from the Council of Minister, it is submitted that the President can also act on his own discretion and cannot wait for indefinite time and would have to take a view within a reasonable time because he has to preserve, protect and defend the Constitution and the law as per the mandate of his oath.

In the light of the above discussion, it is respectfully submitted that that in corruption cases, it is a discretionary power of the President to grant sanction of prosecution against the Prime Minister or any of his colleagues under Section 197 of the Cr. P. C. and Section 19 of the Prevention of Corruption Act, 1988. But, as H. M. Seervai argues, this is a very important weapon in the hands of the President which he must exercise carefully and exceptionally because the sanction of prosecution can unseat the Prime Minister or Minister, as the case may be. If used irresponsibly, it would be a peril to the country’s Parliamentary Government system. In our country the Union Council of Ministers is collectively responsible to the Lok Sabha under Article 75(3) of the Constitution, and not to the President. Only the Lok Sabha has power to make or unmake the Governments. The President is always bound to have a Council of Ministers even if the Lok Sabha is dissolved and he cannot exercise his powers without the advice of the Council of Ministers and if he acts without ministerial advice, his actions will be liable to set aside. Unless and until solid and reliable evidence is presented to the President by the applicant against the Prime Minister, he should not exercise his independent power.

5. Past precedents  

There are some past precedents which help us to understand the situation easily. Some former Presidents of the country have faced the question of sanction of prosecution against the Prime Minister. It is said that the then President Giani Zail Singh received an application on 14 June 1987 from one Mr. Rajinder Puri, President of Ekta Party, and a renowned journalist, who requested him seeking permission under the Prevention of Corruption Act to prosecute the then Prime Minister Mr. Rajiv Gandhi on charges relating to the Bofors deal. Puri enclosed to his letter a note on the Bofors deal, prepared by Ram Jethmalani, a senior lawyer of the Supreme Court of India, and a copy of the allegations submitted by George Fernandes. On 26th June 1987, Puri wrote to President Zail Singh again urging him to take action to protect the Constitution. On 8th July 1987, a letter was received from Ram Jethmalani in which he had listed the various aspects of the Bofors deal, which, according to him, constituted the chain of circumstantial evidence of corruption against Prime Minister Rajiv Gandhi. He suggested that President Zail Singh should remove the Prime Minister Mr. Gandhi and install a new Prime Minister to head a National Government.

President Zail Singh said that in view of the repeated requests for sanctioning prosecution against the Prime Minister, he pondered over the matter in great depth and he was fully satisfied that the President had the power to sanction the prosecution of the Prime Minister and this power could be exercised by him without the aid and advice of the Council of Ministers headed by the Prime Minister. But taking into consideration that a Presidential sanction for prosecution of a Prime Minister commanding absolute majority in Parliament would have far reaching consequences, Mr. Zail Singh did not grant any such sanction. He made a careful assessment of the material placed before him and came to the conclusion that even though the allegations were serious and required to be effectively refuted by the Government to allay the misgivings of the nation, the material before him was not sufficient to establish a prima facie case for according sanction for the prosecution of the Prime Minister(M. S. Batra, Memoirs of Giani Zail Singh, Har-Anand Publications Pvt. Ltd., New Delhi, 1997, at 273-274.). President Zail Singh avoided a big constitutional crisis!

The ghost of sanction of prosecution against the Prime Minister appeared again before President R. Venkataraman when Shanti Bhushan, a senior lawyer of the Supreme Court, and a former Law Minister in Morarji Desai Government, requested to the President for granting sanction of prosecution against the then Prime Minister Mr. Rajiv Gandhi on 11 May 1989 for corruption and bribery. In his letter, Shanti Bhushan alleged that Prime Minister Rajiv Gandhi was guilty of corruption in the Bofors gun deal and repeated all that had appeared in newspapers. President Venkataraman stated that Shanti Bhushan’s letter also did not contain a verification and affirmation that facts stated were true to the petitioner’s knowledge or information which he believed to be true. President Venkataraman took the opinion of the then Attorney-General on the issue who opined that the President was empowered to grant sanction of prosecution against the Prime Minister on his own discretion and in this matter he was not required to act on the aid and advice of the Council of Ministers. The Attorney-General supported his view with the help of Karunanidhi case and A. R. Antulay case.  But President R. Venkataraman was not satisfied with this view of the Attorney-General and asked the latter to re-examine the matter and send a formal reply. The reply reiterated the position that so long as the ruling in the Karunanidhi case held well, the President must be deemed to be the authority competent to sanction prosecution of the Prime Minister. The R. S. Naik case should be regarded as ruling that the President or the Governor should act in his discretion without the aid and advice of the Council of Ministers in matters relating to grant of sanction of prosecution, though both these positions could be assailed in appropriate proceedings. Mr. Venkataraman said that on the basis of this opinion, he examined Shanti Bhushan’s application carefully, without referring the matter to the Home Ministry and rejected the request as he did not find any substance in the application. Had the President given his sanction to prosecute the Prime Minister, the latter had to resign from his office and face trial.

Shanti Bhushan wrote back to President Venkataraman on 11 July 1989 stating that the order did not give reasons and he wanted to know whether the decision was taken by the President on his sole discretion or on the advice of the Council of Ministers. After consulting the Attorney-General, a reply was sent to Shanti Bhushan by President Venkataraman stating that whether any advice was tendered by the Council of Ministers to the President or not, was confidential.

President Venkataraman was not in favour of promoting the theory of so-called discretionary powers of the President to grant sanction of prosecution against the Prime Minister due to some political reasons including his loyalty to the Nehru- Gandhi family due to which he had been installed into Rashtrapati Bhawan. He was in fact Prime Minister’s President.

President Venkataraman states that thanks to his legal background and association for the United Nations Administrative Tribunal for 25 years that he could bring to bear a measure of legal insight to the issues before him. He argues that he wondered what a President without legal training would do in such cases. If the President had to decide such issues in his sole discretion, he could hardly distinguish between evidence and hearsay, nor could he judge whether the ingredients of an offence had been made out by the applicant. If such a President relied on his secretary who oftentimes was an administrative officer and not one trained in law, his advice could not be of much value. If the President consulted the law officers of the Government, he could not be sure of the advice was not partisan. Nor he could consult the judges since they had to decide the case later if sanction was issued. Consultations with non-official lawyers would hardly be proper since it involved sensitive charges against the head of the administration, argues Venkataraman. President Venkataraman also states that he hopes that the Supreme Court of India would some day ponder over these matters. The Supreme Court should decide such a matter clearly.

6. Concluding observations

It is submitted that the observations of the Supreme Court in the abovementioned cases, juristic views, and the personal observations of Giani Zail Singh and R. Venkataraman make it abundantly clear that the President has a discretionary power to grant sanction of prosecution against the Prime Minister or any of his colleagues but it seems awkward that despite the availability of material, Presidents Zail Singh and Venkataraman did not grant sanction of prosecution against Prime Minister Rajiv Gandhi. It may be assumed that in this matter President Zail Singh was fully aware about the political consequences of his action as Rajiv Gandhi had a strong support of majority of members of Parliament and was in position to impeach President Zail Singh! It also appears that Venkataraman became the victim of loyalty as he was installed into Rashtrapati Bhawan by Rajiv Gandhi Government which had a strong support of majority in the Parliament.

While considering the issue regarding grant or refusal of sanction against the Prime Minister or any Union Minister, the only thing which the President is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The President cannot undertake a detailed inquiry to decide whether or not the allegations made against the Prime Minister are true. It is the task of the trial court. The President is not a trial judge. He should be satisfied prima facie about the evidence. And both Presidents Zail Singh and Venkataraman had sufficient evidence for satisfying them that a prima facie case of corruption was made out against the then Prime Minister Rajiv Gandhi. But instead they did not grant any such sanction!

Recently in Subramanian Swamy v. Manmohan Singh, the Supreme Court held that competent authority should take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain v. Union of India, and the guidelines framed by the CVC. In the instant case while delivering a supplementing judgment, Justice A. K. Ganguli observed as follows:

Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under Prevention of Corruption Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty.

Further Justice Ganguli went on to state:

The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds. I may hasten to add that this may not be factual position in this but the general demoralizing effect of such a popular perception is profound and pernicious.

By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.

In the instant case Justice Ganguli also recommended to the Parliament to amend Section 19 of the Prevention of Corruption Act, 1988 for expediting the process of grant of sanction of prosecution against the public servants. The following guidelines were recommended:

a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under Section 19 of the Prevention of Corruption Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.

b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

In view of the foregoing discussion, it is submitted that the President has a discretionary power to grant sanction of prosecution against the Prime Minister or any Union being their appointing authority, without taking any advice of the Council of Ministers under Article 74(1) of the Constitution. This power is a must for maintaining constitutional democracy and rule of law in the country for which the President is duty bound under Article 60 of the Constitution. But this type of power must be exercised carefully keeping in view all the pros and cons and with the help of the sufficient evidence as it can unseat the Prime Minister or any Minister who are democratically elected. In the Cabinet form of Government the Prime Minister is the real head of the administration and is duly responsible to the Parliament, the body which represents the people, the sovereign. Before granting any sanction of prosecution against the Prime Minister, the President should ensure that he has sufficient and authentic evidence with him against the Prime Minister which prima facie indicates that the latter is involved in corruption. The Prime Minister is amenable to the criminal law for committing crimes and the Constitution does not provide him any immunity from criminal proceedings. This is really a very powerful weapon in the hands of the President which he must use carefully and in the interest of justice.

Dr. Lokendra Malik  is practicing as an Advocate in the Supreme Court of India with former Union Law Minister Salman Khurshid. He did his Ph.D. in Indian Constitutional Law from Kurukshetra University, Kurukshetra and also earned the LL.D. (Post-doctoral) degree from the National Law School of India University, Bangalore in the area of Indian Constitutional Law on Constitutional Position of the President of India under the worthy supervision of Vice-Chancellor Professor R. Venkata Rao. Before joining law practice, Dr. Malik has also been a professor of law at the Indian Institute of Public Administration, New Delhi and taught senior civil servants. Public law is his main area of interest in terms of litigation, academic writings and research. He has been a member of Internship Committee of the Lok Sabha and is also a member of some other prominent academic bodies such as Indian Law Institute and Indian Institute of Public Administration.