SC seeks viewpoints on Lokpal’s power to investigate HC judges
The apex court emphasised that it would only determine the jurisdictional issue within the contours of the Lokpal Act and constitutional provisions.
The Supreme Court on Tuesday underscored the need for a comprehensive legal examination and “different viewpoints” before ruling on whether the Lokpal has the authority to investigate complaints against sitting high court judges under the Lokpal and Lokayuktas Act, 2013.
Extending its previous stay on the anti-corruption ombudsman’s January 27 order that sought to assume the authority to act against the constitutional court judges, the apex court emphasised that it would only determine the jurisdictional issue within the contours of the Lokpal Act and constitutional provisions.
“We will only consider the issue if jurisdiction under the Lokpal Act and constitutional provisions,” emphasised the special bench comprising justices Bhushan R Gavai, Surya Kant and Abhay S Oka, pointing out that India’s constitutional framework already has mechanisms in place to address allegations against higher judiciary members.
The court further appointed senior advocate Ranjit Kumar as amicus curiae to ensure all perspectives are considered before a decision is made, as it noted that the predominant view of the senior lawyers before it, solicitor general Tushar Mehta, Kapil Sibal and BH Marlapalle, remained that the Lokpal lacked the jurisdiction to order a probe against high court judges.
“We want all viewpoints to be presented before us before we decide. We would want you to act as an amicus because we can’t just hear one view point and decide,” the bench told Kumar, who agreed to assist the court. The bench will hear the case next on April 15.
The Supreme Court’s intervention arose from a suo motu case stemming from the Lokpal’s decision to entertain two complaints against a sitting high court judge accused of influencing an additional district judge and another high court judge in a pending suit. According to the complainant, the private company that the high court judge in question sought to favour was one of his clients when the judge practised as a lawyer.
The top court had on February 20 stayed the January 27 order, calling the anti-corruption authority’s interpretation of its own jurisdiction “very disturbing”. The Lokpal’s now-suspended order had been passed by a full bench led by former Supreme Court judge justice AM Khanwilkar, currently serving as the chairperson of the Lokpal.
During the Tuesday hearing, SG Mehta, appearing for the Union government, argued that the Lokpal Act does not extend to high court judges, as they are constitutional functionaries. “This is basically a question of law. The real issue is whether the Lokpal has jurisdiction, and if so, what is the mechanism,” Mehta submitted.
The bench agreed that the case should not expand beyond the jurisdictional question, asserting: “We already have a mechanism in place.”
Senior advocate Kapil Sibal, president of the Supreme Court Bar Association, raised a fundamental issue: “Can a complaint ever be filed without the remit of the constitutional provisions? Like, can someone approach the police for the registration of a case against a high court judge?” Mehta, however, urged the bench to restrict the deliberation to the jurisdiction of the Lokpal and not assess whether there are alternative mechanism or not.
Seeking a broader perspective, the bench then requested Kumar to act as amicus curiae. “We want all viewpoints to be presented before us before we decide,” observed the bench, adding that the complainant’s name would remain masked in the proceedings. The complainant before the Lokpal was also present in the court.
The Lokpal, in its now-suspended order, ruled that high court judges fall within the definition of “public servant” under the 2013 Act, asserting its jurisdiction over them. The full bench, led by Khanwilkar, reasoned that since many high courts were initially established under British rule and later recognised under the Indian Constitution, they should be considered institutions established by an Act of Parliament, thus bringing their judges under the 2013 Act’s purview. Khalwilkar, who retired from the Supreme Court in 2022, has been serving as the chairperson of the Lokpal of India since March last year.
However, despite affirming its jurisdiction, the Lokpal opted to seek guidance from the Chief Justice of India (CJI) before proceeding further and deferred action on the complaints.
“Awaiting the guidance of the Hon’ble 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.
Section 20(4) of the 2013 Act says that a preliminary inquiry into a complaint should be completed within 90 days. If there is a good reason for the delay, the inquiry can take up to 180 days. In its public order, the Lokpal redacted the name of the high court judge and the concerned high court.
The Supreme Court’s intervention brings into focus the landmark judgment in K Veeraswami vs Union of India (1991), where a Constitution bench held that a judge of the Supreme Court or a high court is a “public servant” under the Prevention of Corruption Act, 1988. However, the ruling laid down a crucial safeguard –– no investigation against a judge can proceed without prior sanction from the CJI.
This principle was derived from the need to uphold judicial independence while ensuring accountability. The top court emphasised that judges are not immune to criminal liability but must be protected from frivolous or politically motivated accusations that could undermine judicial integrity.
Further, the constitutional provisions governing the judiciary, particularly Articles 124 and 217 of the Constitution, delineate the appointment and tenure of Supreme Court and high court judges. Article 124(4) and Article 217(1)(b) outline the process of removal of judges, which can only be executed through impeachment by Parliament on grounds of proven misbehaviour or incapacity.
