Shield Or Sword? Revisiting The Doctrine Of Prior Sanction For Public Servants In India’s New Criminal Justice Framework
- IJLLR Journal
- Feb 17
- 1 min read
Parag Sharad Chaudhari, LLB, ILS Law College, Pune
Gunvanti Prakash Deore, LLB, ILS Law College, Pune
ABSTRACT
The requirement of prior sanction for prosecuting public servants has long operated as a procedural filter within Indian criminal law, intended to protect officials from frivolous and vexatious prosecutions while allowing accountability for genuine misconduct. With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, this doctrine has been retained under Section 218, but with a significant structural reform through the introduction of a time-bound and deemed sanction mechanism. This paper critically examines the evolution, rationale, and scope of the sanction requirement under the new criminal justice framework. It analyses the conditions triggering the need for sanction, the functional nexus test, and the distinction between acts done in official capacity and those falling outside it. The paper further evaluates judicial interpretations governing competence of sanctioning authorities, application of mind, exceptions to the requirement, and the extent of permissible judicial intervention. By situating Section 218 within constitutional principles of equality and administrative accountability, the paper argues that the provision functions as both a shield for honest officials and a calibrated sword against executive inaction. Ultimately, it highlights how the BNSS seeks to rebalance procedural protection with timely access to justice.
Keywords: Prior Sanction, Public Servants, Official Duty Nexus, Sec 218 BNSS, Cognizance.
