ABSTRACT
In India, for a long time, the concept of prosecution sanction has been followed as a substantive constitutional safeguard, requiring the executive to apply its mind to the propriety of prosecuting a public servant for acts committed in the discharge of official duty. The Supreme Court of India has also built an elaborate jurisprudence around this and treats sanctions not as a mere formality. However, Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the “BNSS”) has changed the existing position. It added a new proviso to 218(1) imposing a 120-day time limit for the decision on sanction. The main change is that it provides that upon such failure, it will be deemed to have sanction been given. This research article discusses how deemed sanctions are counterproductive in that they do not provide substantive protection to public servants and do not create any accountability for subsequent prosecutions. Therefore, deemed sanctions create an unsound constitutional basis for all subsequent trials.
Keywords: Deemed Sanction, Section 218 BNSS, Application of Mind, Prosecution Sanction and Public Servant Accountability.
