SC stays Lokpal’s order on HC judges, calls it ‘very disturbing’

The Supreme Court on Thursday suspended the Lokpal’s January 27 order, which held that India’s anti-corruption ombudsman could probe complaints against high court judges, calling the anti-corruption authority’s interpretation of its own jurisdiction “very disturbing”.

A special bench, comprising justices Bhushan R Gavai, Surya Kant and Abhay S Oka, expressed a prima facie view that high court judges would not come under the purview of the Lokpal and Lokayuktas Act, 2013, since their appointment is governed by the Constitution and that they are not like any other “public servant” functioning in an organisation established by a parliamentary law.

Issuing notices to the Union government and the office of the Lokpal, the bench also restrained the complainant before the Lokpal from disclosing the name of a high court judge against whom accusations of influencing an additional district judge and another high court judge in a pending case were levelled.

The court signalled its strong disapproval of the ombudsman’s stance in entertaining two complaints against the sitting high court judge, observing: “This is something very disturbing… We propose to issue notice to the Union government.”

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Interestingly, the January order was passed by a full bench of the Lokpal led by justice AM Khanwilkar, a retired Supreme Court judge.

In Thursday’s hearing, solicitor general (SG) Tushar Mehta, representing the Centre, told the top court that “a high court judge would never come within the ambit of the Lokpal Act”. Supporting this position, senior advocate Kapil Sibal, president of the Supreme Court Bar Association, warned: “Such an interpretation by the Lokpal is fraught with danger.” The court then sought the assistance of the two senior lawyers and scheduled the next hearing for March 18.

Rebutting the Lokpal’s reliance on pre-Constitution provisions to justify its jurisdiction, the bench said: “After the Constitution has come into force, where is the question of referring to those old provisions prior to the Constitution coming into force? All the high court judges are appointed under the Constitution.”

Issuing a stern warning to the Lokpal, the Supreme Court asserted: “We have stayed the order. We hope the Lokpal understands the order of stay and does not proceed. Otherwise, we are here.”

The court’s official order put the complainant on notice and explicitly barred them from further disclosing the judge’s name or lodging additional complaints against the same judge. “Issue notice to the Union government and the office of the Lokpal. The impugned order of the Lokpal is stayed. The complainant is also put to notice and he is directed not to disclose the names of the judge against whom the complaint was made and that he would not indulge in more complaints against the same judge,” the order stated.

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 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 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 stated.

Section 20(4) of the Lokpal and Lokayuktas Act, 2013 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 from 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.

Complaints against sitting high court judges are currently addressed through an in-house mechanism, under which such complaints are first examined by the CJI, in consultation with the chief justice of the concerned high court. If the complaint is found to have merit, a committee comprising a Supreme Court judge, and two chief justices of high courts other than the high court to which the judge belongs. Some of the recourses available to the CJI following the inquiry include advising the judge to resign; requesting the chief justice of the high court concerned to withdraw judicial work or rest the matter after admonition if the misconduct is not grave.