The Hon’ble Supreme Court of India, on 17th February 2023, delivered a significant judgment in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra and Ors¹. The question involved in the case was whether a governor's refusal to grant sanction for a public servant's prosecution can be challenged in a court of law.

The case arose from an order passed by the Governor of Maharashtra refusing to grant sanction for the prosecution of the State's Minister of Industries, Mr. Subhash Desai, under Section 197 of the Code of Criminal Procedure, 1973 (“CrPC”). The sanction was sought in relation to a corruption case involving the allotment of land for the construction of a housing society in Mumbai.

The petitioner, a lawyer and social activist, filed a writ petition in the Bombay High Court challenging the Governor's order. The High Court dismissed the petition, holding that the Governor's order was immune from judicial review. The petitioner then approached the Supreme Court, challenging the High Court's decision.

The Supreme Court's judgment in the present case is crucial as it determines the extent of the Governor's immunity from judicial review in matters of granting sanction for the prosecution of public servants. The Hon’ble Apex Court held that the Governor's decision to grant or refuse sanction for the prosecution of a public servant is subject to judicial review.

The Court further held that the Governor's decision must be based on relevant material and must be taken in a reasonable and fair manner. It emphasized the need for the Governor to act independently and without any bias or influence and the Governor's decision must be based on the law and not on extraneous considerations.

This decision of Hon’ble Supreme Court is significant as it upholds the principle of the rule of law and reinforces the accountability of public officials. The judgment ensures that the Governor's decision is subject to judicial scrutiny and prevents the misuse of the sanctioning power to shield corrupt public officials.

This view of Hon’ble Supreme Court has been widely welcomed by civil society organizations, legal experts, and anti-corruption activists. The decision is seen as a step towards greater transparency and accountability in the functioning of public officials.

However, the judgment has also been criticized by some who argue that it undermines the constitutional authority of the Governor. The decision is seen as a limitation on the Governor's discretion in granting or refusing sanction for the prosecution of public servants. Some legal experts have also argued that the judgment may lead to an increase in frivolous litigation challenging the Governor's decision.

Overall, the Supreme Court's judgment in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra and Ors. is a significant development in the field of constitutional law and governance as it ensures that the Governor's decision to grant or refuse sanction for the prosecution of public servants is subject to judicial scrutiny and prevents the misuse of the sanctioning power to shield corrupt public officials.

The decision also highlights the need for greater transparency and accountability in the functioning of public officials. It underscores the importance of independent and fair decision-making and the need to avoid any bias or influence and has set a positive precedent for the protection of the public interest and the promotion of good governance in the country.

In conclusion, the Supreme Court's decision will have a far-reaching implication on the functioning of public officials in the country.

By - Muskan Maheshwari