BNSS Section 218

Understanding BNSS Section 218: Prosecution of Judges and Public Servants

Introduction to the Legal Safeguards for Public Officials

In any legal system governed by the rule of law, a fundamental principle is that everyone is equal before the law. This means that no person, regardless of their position or power, is above legal scrutiny. However, the law also recognizes that certain individuals, particularly those in public service, hold positions that require them to make difficult decisions in the public interest. To ensure they can perform their duties without fear of constant and harassing legal action, the law provides certain procedural safeguards.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces the old Code of Criminal Procedure (CrPC), addresses this delicate balance in BNSS Section 218. This section outlines the specific rules for the prosecution of Judges and public servants. It does not provide them with complete immunity from criminal charges. Instead, it establishes a requirement for "previous sanction," or prior permission, from the government before a court can even begin a case against them for acts done in their official capacity. This article will provide a detailed and clear explanation of BNSS Section 218, its various components, and its significance for law students, professionals, and the general public.

What is the Core Principle of BNSS Section 218?

The central idea of BNSS Section 218 is to create a filter against frivolous or ill-intentioned lawsuits. It aims to protect honest and responsible public servants from being dragged into court for actions they took while performing their jobs.

The key to this section lies in two main concepts: "taking cognizance" and "previous sanction."

Understanding "Taking Cognizance"

"Taking cognizance" is the very first step a court takes in a criminal case. It means the Judge or Magistrate applies their mind to the complaint and the evidence presented, and decides that there is enough basis to proceed with a trial. It is the formal start of the judicial process against an accused person. BNSS Section 218 stops this very first step. It states that for the specific officials mentioned, the court’s power to take cognizance is blocked unless a specific condition is met.

Understanding "Previous Sanction"

The condition that unlocks the court's power is "previous sanction." Sanction simply means official permission or approval. Under BNSS Section 218, this permission must come from the government that employs the public servant.

The logic behind this is that the government is considered the best judge of whether its employee's action, even if it appears to be an offence, was genuinely part of their official duty. For example, a police officer using force to arrest a resisting suspect, which results in injury, is an act done during official duty. A private citizen’s complaint of assault in this situation would be reviewed by the government. The government would then decide if the officer's action was a reasonable part of their duty or if it was an excessive use of force that warrants a criminal trial.

If the government grants the sanction, the court case can begin. If it denies the sanction, the case stops.

The "Official Duty" Connection

This protection is not a blanket immunity for all crimes a public servant might commit. The safeguard of BNSS Section 218 only applies if the alleged offence was "committed by him while acting or purporting to act in the discharge of his official duty."

This is the most critical part of the section. The act must have a direct connection, or "nexus," to the person's job.

• Example 1 (Protection Applies): A magistrate issues an order that is later found to be legally wrong and causes harm. They are protected by sanction because issuing orders is their official duty.

• Example 2 (Protection Does Not Apply): A government tax officer gets into a private land dispute with their neighbor and assaults them. This act has no connection to their job as a tax officer. Therefore, no sanction is required, and the neighbor can file a criminal case directly.

The law protects the office and the official act, not the person in their private life.

Who is Protected Under Section 218 of the BNSS?

BNSS Section 218 clearly defines the categories of individuals who are covered by this procedural safeguard.

Judges and Magistrates

This category includes members of the judiciary. The protection is essential to maintain judicial independence. It ensures that Judges and Magistrates can make decisions based on the law and evidence without being intimidated by threats of lawsuits from parties who are unhappy with a judgment.

Public Servants

This refers to government employees, but with a specific condition: they must be public servants "not removable from his office save by or with the sanction of the Government." This typically covers higher-ranking officials and officers whose appointment and removal are directly controlled by the Central or State Government. It does not automatically apply to every single government employee.

Members of the Armed Forces

Sub-section (2) of BNSS Section 218 provides a similar protection for members of the Armed Forces of the Union (Army, Navy, Air Force). For any offence committed while acting in their official duty, a court cannot take cognizance without the previous sanction of the Central Government.

State Forces Charged with Public Order

Sub-section (3) allows a State Government to issue a notification extending this same protection to its own forces that are "charged with the maintenance of public order" (like state police forces). If such a notification is issued, then the State Government's sanction would be required for the prosecution of these members.

The Sanctioning Authority: Who Gives Permission?

BNSS Section 218 is very clear about which government body has the power to grant or deny sanction. The authority depends on who the public servant works for.

Central Government

The Central Government is the sanctioning authority in two main cases:

1. For persons who are or were employed "in connection with the affairs of the Union." (Clause (a))

2. For any member of the "Armed Forces of the Union." (Sub-section (2))

State Government

The State Government is the sanctioning authority for:

1. Persons who are or were employed "in connection with the affairs of a State." (Clause (b))

2. Members of the State forces (for public order), if a notification has been issued under sub-section (3).

The Special Case: President's Rule (Article 356)

The law also accounts for a situation where a State's government is dissolved and the state is placed under President's Rule (Article 356 of the Constitution).

During such a period, the Central Government takes over the administration of the state. BNSS Section 218 has two provisos to address this:

1. For a state public servant (Clause (b)), if the offence was committed during President's Rule, the sanction must be given by the Central Government, not the (non-existent) State Government.

2. Similarly, for members of the State's public order forces (Sub-section 4), if the offence was committed during President's Rule, the sanction must come from the Central Government.

Major Changes and Key Provisions in BNSS Section 218

BNSS Section 218 introduces some highly significant changes compared to the old law (Section 197 of the CrPC). These changes are aimed at increasing accountability and preventing the misuse of the sanction provision as a tool for delay.

The 120-Day Time Limit: A New Accountability Measure

One of the biggest criticisms of the old law was that government departments would sit on sanction requests for years, effectively denying justice by doing nothing.

The second proviso to BNSS Section 218(1) directly solves this problem. It states that the government must take a decision on the request for sanction within 120 days from the date it receives the request.

More importantly, it creates a "deeming provision." If the government fails to make a decision in 120 days, the sanction shall be deemed to have been accorded (it is legally assumed to have been given). This is a revolutionary change. It puts a strict deadline on the government and ensures that a case cannot be stalled indefinitely. The legal process can move forward.

Exceptions: When is No Sanction Required?

The most powerful change in BNSS Section 218 is the "third proviso." This provision lists several specific offences from the new Bharatiya Nyaya Sanhita (BNS), 2023, for which no sanction is required at all.

This means if a public servant is accused of committing these specific offences, the police or a citizen can go to court, and the court can take cognizance of the case immediately, just like for any other citizen.

The offences listed in this proviso (such as sections 64, 65, 66, 70, 71, etc., of the BNS) primarily relate to:

• Bribery: Taking a bribe for an official act.

• Corruption: A public servant obtaining any valuable thing without paying for it or paying inadequately.

• Criminal Breach of Trust: A public servant dishonestly using property entrusted to them.

This exception is a major step in the fight against corruption. The law now sends a clear message: acts of bribery and corruption are not considered part of any official's "official duty," and the protective shield of sanction will not be available for them.

Understanding Sub-Section 5: Government Control Over the Trial

Finally, BNSS Section 218(5) gives the concerned government (Central or State) additional powers after sanction has been granted.

The government may determine:

1. The person by whom the prosecution will be conducted (e.g., they can appoint a special public prosecutor).

2. The manner in which the prosecution will be conducted.

3. The court before which the trial will be held.

This allows the government to manage high-profile or sensitive cases by, for example, moving them to a special court to ensure a speedy and fair trial, free from local influence or pressure.

Also read: BNSS Chapter 15

Conclusion: The Significance of BNSS Section 218

BNSS Section 218 is a critical piece of procedural law that attempts to find a difficult but necessary balance. On one hand, it protects the integrity of public administration, allowing judges, magistrates, and public servants to perform their duties without fear of harassment.

On the other hand, it has been significantly updated to strengthen accountability. The introduction of the 120-day time limit for sanction (with a "deemed" approval) ensures that the process cannot be used to delay justice. Most importantly, the exemption of corruption and bribery-related offences from the sanction requirement marks a major shift, underlining the principle that criminal self-enrichment can never be part of an official's duty.

For students and professionals, understanding BNSS Section 218 is key to grasping the complex relationship between state power, public service, and the rule of law in India's new criminal justice system.