A perturbed, shaken Supreme Court has initiated suo motu proceedings arising out of the “order dated 27.01.2025 passed by Lokpal of India and ancillary issues”, in which it asserted its jurisdiction on high court judges.
On February 20, a three-judge division bench of the Supreme Court issued notices to the Union government, the registrar of the Lokpal and the complainant who had lodged two complaints before the Lokpal – one against a sitting additional judge of a high court and an additional district judge in that state and the other against a Judge of the same high court.
What is the Lokpal controversy about?
The Lokpal was established as an anti-corruption body under the Lokpal and Lokayuktas Act, 2013 (LALA).
By its order, the Lokpal held that they “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”. The subject complaints and relevant materials lodged with the Lokpal were then forwarded to the office of the Chief Justice of India for his consideration.
While awaiting that consideration and guidance, the order deferred the Lokpal’s own consideration of the complaints for four weeks “keeping in mind the statutory time frame to dispose of the complaint in terms of Section 20 (4) of the Act of 2013” (Para 14), i.e., an outer limit of 180 days.
The LALA makes no stipulation for such forwarding. The Lokpal did so explicitly in deference to certain directions given by the Supreme Court in the case of K. Veeraswamy v. Union of India and Others (1991), a full 23 years before the Act was enforced on January 16, 2014.
This was a bizarre case of legislation being obfuscated by a prior decision.
Meanwhile, the top court stayed the Lokpal’s order and made the notices issued by it returnable on March 18, 2025. The Supreme Court order stated that “the matter is of a great significance concerning the independence of the judiciary”.
Lokpal vs. the constitution
There is no gainsaying that statement. The complaints entail the implication, arraignment and prosecution of sitting judges of the high court under the Prevention of Corruption Act 1988 (PCA).
The Lokpal has opined, at first instance, that a judge of a high court is “any person” as governed under Section 14 (1) (f) of the LALA, read in the light of the definition of “judge” under Section 19 and the definition of “public servant” under Section 21 (Third) of the IPC 1860, as well as the definition of “public servant” in Section 2 (c) (iv) of the PCA, relying upon K. Veeraswamy case – Lokpal chairperson Justice Ajay Manikrao Khanwilkar was a counsel in that case.
The other premise of the Lokpal’s order is that all high courts came to be established by legislative Acts of the Sovereign segueing into Acts of Parliament.
Also read: Supreme Court Judges Aren’t ‘Public Servants,’ Says Lokpal
Even at first instance, the logic of the Lokpal is facile and fallacious. In any event, it is replete with constitutional and legal aporias.
With the advent of the constitution and especially upon the enactment of the constitution (Seventh Amendment) Act, with effect from November 1, 1956, Article 214 of the constitution put the establishment of high courts beyond the pale of parliamentary legislation.
The article reads: “There shall be a High Court for each State”. Thus, every high court in the country is constitutionally sui generis and sui juris in that sense.
The Lokpal and Lokayuktas are not constitutional bodies. The Lokpal is simply an administrative tribunal with recommendatory powers. It is not a judicial or even a quasi-judicial tribunal. It is placed on the same plane as the government qua sanctioning authority for prosecution (Section 20 (7) (a) of the LALA).
Moreover, no sitting judge of a high court or of the Supreme Court is a ‘public servant’ under Section 21 (Third) IPC 1860/Section 2 (28)(b), BNS 2023. This is because the constitution confers a special status on such judges and stipulates how misbehavior by them may be dealt with – Articles 124, 216 and 217.
The Lokpal’s view, thus, is at odds with these constitutional provisions.
This is so even though such judges do not enjoy the constitutional protection accorded to the President and Governors/Lieutenant Governor under Article 361. The Lokpal failed to notice the Judges (Protection) Act 1985.
Any other approach to effectuate the PCA, the LALA and the IPC /BNS would also be riddled with constitutional anomalies.
The Lokpal is also unmindful of the fact that its approach would impact other constitutional bodies as well. The constitutional paradigm for removal on ground of “misbehavior” of the chairman/members of a Public Service Commission [Art 317(1)] and the chief election commissioner [Art 324(5) proviso] is the same as for the judges of the SC/HC. The constitutional scheme treats all of them at par.
An ‘in-house’ procedure
Amidst all this, the Supreme Court has devised an “in-house procedure for taking suitable remedial action”. However, even according to the apex court itself, that procedure “would fill in the constitutional gap… because of absence of legal sanction to such a procedure” (C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee and Ors, 1995).
An undated “statement” available on the Supreme Court’s website states: “It be noted that all the matters dealt with under the In-House Procedure being strictly confidential in nature, are not liable to be made public”.
Confidentiality trumps the top court’s administrative disposition of complaints/allegations of “misbehavior” by constitutional court judges. Is consideration of such complaints ephemeral? How does one reconcile such a statement with the constitutionally ordained stipulation that the Supreme Court and every high court “shall be a court of record”? (Articles 129, 215)
Another conundrum was that the conditions precedent for a removal by impeachment are set out in the Judges (Inquiry) Act, 1968 (JIA), made under Article 124 (5). Can the LALA supplant, supersede or attenuate the JIA?
Can a prosecution and conviction of a high court or Supreme Court judge under the sanction of the Lokpal serve as a substitute for the investigation by a Committee under the JIA and consideration of its adverse report against the concerned judge by parliament under Section 6(2) of the JIA?
The “in-house procedure” was not made public till a subsequent bench of the Supreme Court directed so in December 2014 during the hearing for Additional District & Sessions Judge ‘X’ v. Registrar General, High Court of M.P & Ors., 2014.
The in-house procedure still lacks legal sanction. Unlike directions and guidelines in cases relating to adoption or sexual harassment or other socio legal issues, the in-house procedure refrains from saying that it would prevail till the enactment of appropriate legislation. This nebulous and equivocatory stance was maintained in a controversy relating to a former Chief Justice of India on account of certain decisions of the Supreme Court relating to the National Register of Citizens (NRC), to which he was a party.
The Lokpal could well have placed the issue before the government and requested it to make a presidential reference to the Supreme Court under Article 143(1) of the constitution. Instead, it has set alarm bells ringing on the bench and diversion bells ringing at the Bar and beyond.
The in-house procedure secretes such judicial ‘misbehavior’ in the judicial out-house. At present, as advised, Adam Smith’s “invisible hand” as a different spectre is alive and well in “the market” of curial consociation.
M.S. Ganesh is a senior advocate at the Supreme Court. K. Seshachary is an advocate. The views expressed are personal.
