INDIA Trends and Developments Contributed by: Kamal Shankar, Atul N Menon, Arjun Narang and Shivam Jain, AZB & Partners
This concept of a “deemed sanction” has been introduced to address delays in obtaining approval for prosecuting public servants. This delay often arises from the tendency of com - petent authorities to either postpone or deny a sanction for extraneous considerations. It is noteworthy that the PCA does not include a sim - ilar concept of a “deemed sanction”. Although the BNSS framework has been applied to the PCA, as a specialised statute the PCA already has a defined process for granting of a sanction. Therefore, said concept of a “deemed sanction” may not be relevant for PCA prosecutions. Immunity for Members of the Legislative Assembly Articles 105 and 194 of the Indian Constitution grant legal immunity to members of parliament and state legislatures, respectively, for any - thing said or any votes cast during legislative proceedings or in committees. They also pro - tect individuals from legal action for publishing reports or proceedings authorised by parliament or state legislatures. These provisions are cru - cial in ensuring that elected representatives can speak and act freely in the course of their duties, fostering open debate without fear of legal con - sequences. The question of whether such immunity extends to cases of bribery was dealt with by the Supreme Court in Sita Soren v Union of India, (2024) 5 SCC 629. In this case, the Supreme Court denied protection under Articles 105 and 194 of the Constitution to Mrs Soren, who was accused of accepting a bribe for the 2012 Rajya Sabha election for voting in favour of an inde - pendent candidate for the Rajya Sabha seat representing the State of Jharkhand. The Court overruled its earlier decision in PV Narasimha Rao v State, (1998) 4 SCC 626 ( PV
Narasimha ) to hold that a member of parliament or the legislative assembly cannot claim immu - nity from prosecution on a charge of bribery in a criminal court under Articles 105 and 194 of the Constitution. The Supreme Court further clarified that the offence of bribery is complete upon the acceptance of a bribe or even at the conclusion of an agreement to accept a bribe. The offence of bribery is no longer dependent on the fulfil - ment of the promised act for which the bribe is given or agreed to be given. Recent Ruling on Granting of Bail in PCA- Related Offences A significant case concerning the granting of bail in PCA-related offences involved the chief minis - ter of a state being prosecuted. In Arvind Kejriwal v CBI, 2024, SCC OnLine SC 2550, the Supreme Court granted regular bail to Mr Kejriwal. The bail was granted subject to certain conditions imposed in the related Enforcement Directorate (ED) case, marking an important development in the ongoing legal proceedings. In this case, Mr Kejriwal was alleged to be the key conspirator in framing the Delhi Liquor Excise Policy 2021–22 in a way as to financially benefit his party’s election campaign in Goa. He was first arrested for offences under the Preven - tion of Money Laundering Act, 2002, and sub - sequently by the Central Bureau of Investiga - tion for offences committed under the PCA. The Supreme Court granted bail, noting that contin - ued incarceration for an extended period pend - ing trial would infringe upon Mr Kejriwal’s right to liberty under Article 21 of the Constitution. Even though the PCA mandates the trial court to endeavour to ensure that the trial is concluded within a period of two years, due to the practical complexities of a trial for complex offences like those under the PCA, trials normally take much
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