India has long treated prosecution sanction as a substantive constitutional safeguard, not a bureaucratic formality. The Supreme Court built a doctrine demanding active application of mind by the executive before any public servant could be tried. Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) disrupts this: if the sanctioning authority stays silent for 120 days, sanction is deemed granted. This is not a procedural tweak addressing executive delay; it is a doctrinal rupture that strips public servants of substantive protection, destabilises the constitutional basis of trials, and displaces executive accountability without replacing it.

The Problem: When Silence Becomes a Legal Act
Section 218 carries forward the familiar requirement of prior sanction, but its proviso states that if the authority fails to communicate a decision within 120 days, sanction “shall be deemed to have been accorded.” Silence now equals consent. A public servant once entitled to have a responsible officer examine the evidence may now face trial on the basis of no decision at all, only the passage of time.

The Doctrine Section 218 Disturbs
The requirement of prior sanction traces back to Section 197 of the 1898 Criminal Procedure Code and Section 19 of the Prevention of Corruption Act, 1988. In Matajog Dobey v. H.C. Bhari (1955), the Supreme Court held sanction protects public servants from frivolous prosecution by ensuring independent review. R.S. Nayak v. A.R. Antulay (1988) elevated sanction to a jurisdictional prerequisite: a trial without valid sanction is a trial without jurisdiction. Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) specified that valid sanction requires genuine application of mind, not rubber-stamping. This requirement, reaffirmed repeatedly through 2023, served four purposes: forcing genuine review of evidence, creating a record for judicial scrutiny, fixing individual accountability, and preserving meaningful weight in both grant and refusal decisions. Deemed sanction destroys all four simultaneously.

The delay problem is real. The Attorney General has acknowledged that sanctions were never granted in over a third of corruption cases, and the Coalgate prosecutions saw years of stalled sanction requests while public attention waited. The Supreme Court tried to fix this in Vineet Narain v. Union of India (1998), which directed decisions within three months, and in Subramanian Swamy v. Manmohan Singh (2012), which allowed private citizens to compel a decision. Neither carried self-executing consequences, and both remained directions the executive could quietly ignore. Section 218’s fix, however, is constitutionally unsound.

Anatomy of the Proviso
Three features create distinct difficulties. First, the duty to decide within 120 days has no substantive content; the statute says nothing about what materials or reasoning must inform the decision. Second, the default favours prosecution, unlike comparable regimes such as the RTI Act, where silence is deemed refusal. Here, the most consequential silence is treated as the most favourable possible decision. Third, deemed sanction creates an order with no author, no reasoning, and no record, leaving nothing for a public servant to challenge under the Antulay doctrine.

A Telling Contrast
The 2018 amendment to the Prevention of Corruption Act introduced a sanction deadline but deliberately rejected a deemed-sanction mechanism, recognising the constitutional risk. Section 218, enacted five years later, does what that Standing Committee refused to do, apparently without comparable scrutiny.
Three Judicial Constructions
A literal construction treats deemed sanction as equivalent to actual sanction, rendering the entire Mansukhlal Chauhan line inoperative. A procedural construction preserves the right to challenge deemed sanction on application-of-mind grounds but largely defeats the legislative purpose, merely relocating delay into post-conviction appeals. The conditional construction is the only defensible path: it validates deemed sanction only where the prosecution proves the authority actually had a complete file, notice of the deadline, and adequate time to decide. This reverses the burden appropriately, requiring the prosecution, not the defendant, to establish that genuine deliberation was possible.

The Deeper Paradox
Deemed sanction weakens everyone involved. The public servant retains, in theory, a right to challenge sanction but has nothing substantive to challenge, since no one examined the case; the Antulay doctrine hands him a key to a door that opens onto an empty room. The prosecution gains only a fragile platform, since deemed sanctions will face extended appellate litigation, potentially reversing convictions years later and delaying the very accountability the provision was meant to deliver. Most importantly, accountability is erased rather than enforced: no officer made the decision to prosecute, so no one can be held politically or administratively responsible for it. The executive discharges its constitutional duty through abandonment, and the statute rewards that abandonment with a deemed grant rather than a deemed refusal.

A Proposed Judicial Framework
The Supreme Court should anchor its eventual ruling in three principles. First, the application-of-mind requirement must remain the floor: deemed sanction should be valid only where the prosecution shows genuine deliberation was possible. Second, the burden of proof must stay with the prosecution, which must produce records of delivery, notice, and the absence of pending requests for clarification. Third, the legislature should be invited to clarify the scope of deemed sanction, including which offences and co-accused it covers, since the current text leaves this dangerously vague.

Conclusion
Section 218 responds to a genuine problem: executive delay in sanction decisions has harmed both corruption victims and public servants left in limbo. But a sanction born of inaction, with no record and no examination, is a legal fiction dressed as an executive act. When that fiction is the sole foundation for a criminal trial, the trial rests on unstable constitutional ground. Reformers of criminal procedure must engage with the doctrinal architecture they disturb; a simple 120-day clock applied to seven decades of jurisprudence produces dislocation rather than reform. The Supreme Court must avoid both the overly literal reading that renders Antulay redundant and the overly adventurous reading that strikes the provision down entirely, leaving the delay problem unsolved. The conditional construction, with the prosecution bearing the burden of proving genuine executive opportunity, is the narrow path consistent with both constitutional principle and the legislature’s legitimate aim of ending deliberate delay.
The silence of the sanctioning authority must not become the silence of the Constitution.