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CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTSAn Omnibus Comprising Constitutional Questions in India and Citizens' Rights, Judges and State Accountability$
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A. G. Noorani

Print publication date: 2006

Print ISBN-13: 9780195678291

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780195678291.001.0001

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The Law of Sanction for Prosecution 1

The Law of Sanction for Prosecution 1

(p.120) 15 The Law of Sanction for Prosecution1

A.G. Noorani

Oxford University Press

In principle, every official, prime minister downwards, has personal liability before criminal and civil courts. Laws made by the Britishers in India continue to impede, if not prevent accountability of public servants to law. Clause 23(2) of the General Clauses Act 1897, a stature applied to all central laws including the Constitution says that 'a thing shall be deemed so be done in good faith. … whether it is done negligently or not'. Therefore, no civil suit for damages or criminal prosecution can be initiated for negligent exercise of statutory power even if it deprives the citizen of his liberty or rights or does damage to his property or business. This is patently violative of the fundamental rights to equality (Article 14) and to personal liberty and equal protection of the law (Article 21). Section 197 of the Criminal Procedure Court 1898 provides that no court shall take cognizance of any offence by a 'public servant' except with the previous sanction of the government that employed him. The sanction provision (Section 19) of the Prevention of Corruption Act also makes the government the court of first instance in cases of offences by public servants.

Keywords:   prime minister, public servants, accountability, criminal prosecution, Article 21, Section 19, Prevention of Corruption Act, Article 14

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