When one Governor refuses to accord sanction to prosecute a former Chief Minister but another, his successor, grants it in the same case, some legal questions are bound to arise. Yet, on an overall assessment of the twists and turns in the Adarsh Cooperative Housing Society scandal in Mumbai, the latest decision of Maharashtra Governor Ch. Vidyasagar Rao to allow the prosecution of former Chief Minister Ashok Chavan ought to be welcomed as a positive move towards public accountability. There was an alleged element of quid pro quo in Mr. Chavan’s favourable decisions while in office and the fact that his mother-in-law and the brother of his father-in-law had flats allotted in the society. It is only just and fair that the trial court is given an opportunity to assess the legal consequence of Mr. Chavan’s actions. The earlier refusal of former Governor K. Sankaranarayanan to grant sanction to prosecute Mr. Chavan had derailed the entire case against him, as the Central Bureau of Investigation moved to delete his name from the charge sheet. However, the Special CBI Court declined the request, noting that the charge under the Prevention of Corruption Act does not go away merely because the Governor refused sanction for the offences of cheating and conspiracy. Mr. Chavan has questioned the legality of the CBI approaching the Governor for sanction for a second time after Mr. Sankaranarayanan had gone into the matter and refused it. However, the State government’s advice to the present Governor to accord sanction is based on “new facts”.
The fresh grounds relate to the observations of the Justice J.A. Patil Commission report which talked of a “nexus established between the acts of Mr. Ashok Chavan and the benefit derived by his close relatives in the form of membership of Adarsh CHS”, and a Bombay High Court order in 2014 upholding the trial court’s refusal to drop his name from the charge sheet. It cannot be forgotten that the entire issue of according sanction to prosecute a public servant for the offences of conspiracy, cheating and forgery is only academic. In 2006, the Supreme Court had laid down that by their very nature such offences do not require prior sanction as they cannot be regarded as having been committed by a public servant in the discharge of official duties. It is surprising that the CBI approached the Governor for sanction in the first place under Section 197 of the Criminal Procedure Code for the offences of conspiracy and cheating. In any case, it could have gone ahead with the prosecution in respect of the Prevention of Corruption Act, which does not require sanction after the accused has demitted office. The idea of shielding public servants from frivolous complaints is the ostensible justification for the sanction provision in law. This technical requirement, however, has more often been a shield for corrupt public servants, especially political leaders. The sooner this bugbear of legitimate prosecution is abolished, the better it would be for probity in public life.
