Prosecution of MLAs with or without grant of sanction by Speaker of the Assembly

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R.S Nayak vs. A.R Antulay. Supreme Court Of India

B.L Hansaria, C.J: The important point for determination in this case is whether previous sanction is necessary for prosecution 6f an M.L.A under the Prevention of Corruption Act, 1988 (hereinafter, the Act ). As this question is being examined by this Court (may be, by any High Court) for the first time after the Act had come into force, in which the definition of public servant as given in section 2(c) of the Act is different from and wider than that given in section 21 of the Indian Penal Code, which had come up for consideration by a Constitution Bench in R.S Nayak v. A.R Antulay., (1984) 2 SCC 183 : A.I.R 1984 S.C 684 in which it was held that an M.L.A is not a public servant, detailed consideration of the matter is called for. In the background of very elaborate and well studied arguments advanced by Shri Rath in support of the petitioner's stand for whom he has appeared that such a sanction is necessary, which with ability has been controverted by Shri S.K Das, learned Government Advocate, we are in a position to critically examine this question, which it deserves.

Brudaban Nayak vs. Election Commission Of India And Another Supreme Court Of India

 This leaves for consideration the power which has been vested by Article 192(1) of the Constitution in the Governor relating to the question of disqualification mentioned in clause (1) of Article 191. Shri Rath has placed very strong reliance on this power of the Governor to contend that it is he who should be taken to be the authority competent to remove an M.L.A. According to the learned counsel, the effect of disqualification being that the concerned person ceases to be a Member and so he gets removed, because of which the power conferred on the Governor to decide the question of disqualification should be taken to be the power akin to removal of an M.L.A In support of this submission, reliance has been placed on Brundaban Nayak v. Election Commission of India A.I.R 1965 S.C 1892, in paragraph 14 of which it was stated that no person who has incurred any of the disqualifications specified in Article 191(1) is entitled to continue to be a member of the Legislative Assembly of the State . Shri Rath submits that as on disqualification one becomes disentitled to continue, it means that he ceases to be a member, which is tantamount to his being removed from membership. Another limb of this argument is that for the Governor to be regarded as the competent authority to remove an M.L.A, it is no longer necessary after the decision of the Constitution Bench in K. Veeraswamy v. Union of India (1991) 3 S.C.C 655, that the authority competent to remove the public servant should be vertically superior in the hierarchy in which the office of the public servant exists, as observed in paragraph 50 of the judgment Shri Rath, therefore, submits that for the Governor to be accepted as a competent authority for the purpose of giving sanction need not be vertically superior in the hierarchy to the M.L.A.