Why SC put Lokpal order to probe corruption allegations against a sitting HC judge on hold

The Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: The Supreme Court Thursday put on hold a 27 January ruling of Lokpal saying High Court judges are subject to scrutiny under the Lokpal and Lokayuktas Act, 2013.

In its judgement, the Lokpal had held that it could entertain complaints against sitting High Court judges as per terms of the anti-corruption law.

A special SC bench, convened to hear a suo motu case arising out of the Lokpal’s ruling, observed that the matter concerning the independence of judiciary was of great importance. “Something very very disturbing,” remarked Justice B.R. Gavai, who was heading the three-judge bench comprising Justice Surya Kant and Justice Abhay S. Oak.

In the bench’s opinion, HC judges cannot be regarded as a statutory authority, but are Constitutional authorities since their appointments are by the government as per the Constitution. “Judges are appointed as per the provisions of the Constitution. They are part of a Constitutional body,” the bench said, while expressing disapproval over the Lokpal’s findings. The bench issued notices to the Lokpal registrar as well as the complainant, while also barring the two from disclosing the contents of the complaint or the HC judge’s name.

A Lokpal bench, led by former Supreme Court judge Justice A.M. Khanwilkar, had ruled on sitting high court judges falling within the ambit of the 2013 law. It was dealing with complaints against an HC judge who was accused of influencing an Additional District Judge and another HC judge in a suit. The order did not spell out either the judge’s name or the High Court where he is serving.

Since the Lokpal forwarded the complaints to the Chief Justice of India (CJI), further action was deferred for the time being. “Awaiting the guidance of the Hon’ble the Chief Justice of India, consideration of these complaints, for the time being, is deferred until four weeks from today, keeping in mind the statutory time frame to dispose of the complaint in terms of Section 20 (4) of the Act of 2013,” the Lokpal said in its January 27 order.

“We make it amply clear that by this order we have decided a singular issue finally—as to whether the Judges of the High Court established by an Act of Parliament come within the ambit of Section 14 of the Act of 2013, in the affirmative. No more and no less. In that, we have not looked into or examined the merits of the allegations at all,” it said.

It was against this backdrop that Chief Justice of India Sanjiv Khanna constituted a bench to look into the matter. During the hearing Thursday morning, solicitor general Tushar Mehta argued against the order and said HC judges can never come under the purview of the 2013 law. “Each judge is the HC,” the law officer told the bench.

Senior advocate Kapil Sibal offered to assist the bench in the case. Sibal, who is also president of the Supreme Court Bar Association (SCBA), called the Lokpal decision as “exceptionally disturbing.”

“It is fraught with danger,” he submitted.

What Lokpal order said

The Lokpal’s order noted that it had recently ruled that the judges of the Supreme Court are not amenable to its jurisdiction since the top court is a body or adjudicatory authority established in terms of Section 124 of the Constitution of India and not under an Act of Parliament. However, high courts, it opined, were established under the laws enacted by the Parliament.

Therefore, high courts, as a body, qualified the description of an institution given in section 14(1)(f) of the 2013 Act. According to it, HCs were covered under two of eight juristic entities that are mentioned under the section.

Section 14 empowers the Lokpal to probe corruption allegations against eight entities. They are the Prime Minister, a Union Minister, a Parliamentarian, a Group A or Group B public servant, a Group C or D government officer, any persona who is or has been a chairperson or member or officer or employee in any body, board, corporation, authority, company, trust or society that is established by a law or is wholly or partly financed by the Centre.

Also within the ambit is any individual who is or has been a director, manager, secretary or other officer of every other society, trust or an association that is wholly or partly financed by the government and any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust in receipt of any donation from any foreign source under the Foreign Contribution (Regulation) Act, 2010.

In its decision, the Lokpal had held a HC judge would fall within the ambit of expression “any person who is or has been a chairperson or member or officer or employee in any board, body, corporation, authority, company, trust or society that is established by a law.” It would be too naïve to exclude a HC judge from the purview of this provision of section 14 of the law, it opined.

“The expression “Judge” has always been understood as not only every person who is officially designated as a Judge, but also every person. To wit, it will be useful to advert to the definition of Judge in Section 19 of the Indian Penal Code (IPC) as also to the enactment of Anti Corruption Laws (Amendment) Act, 1964 and re-enacted Section 21 with the third category of public servant, including sub-clause (iv) of clause (c) of Section 2 of the Act of 1988 – defining expression public servant to mean any Judge,” it added.

In 1991 a five-judge Supreme Court bench, hearing the Justice K Veeraswamy case, declared that a judge of the top court or HC is a public servant under the Prevention of Corruption Act, 1988. However, the ruling prohibited any police probe against a sitting judge without prior sanction from the CJI.

Referring to this, the Lokpal said, “Applying the underlying principle and the logic as given in the reported decision, the expression “any person” in Section 14(1)(f) of the Act of 2013 must include a Judge of the High Court established by the Act of Parliament as well.”

However, it also felt that a complaint before the Lokpal cannot strictly be equated with a criminal case.

(Edited by Sudha V)