Probing judges: An order on trial

Anti-corruption ombudsman Lokpal’s view that it has the power to look into complaints against sitting judges of High Courts has raised questions about the scope of Lokpal’s powers and the protections available to the judges. The Supreme Court has taken suo motu cognisance of the Lokpal’s order which directed that two corruption complaints it received against an HC judge and materials related to them be forwarded to the office of the Chief Justice of India (CJI) for his consideration. A Supreme Court bench of Justices B R Gavai, Surya Kant and A S Oka stayed the Lokpal’s order, describing it as “something very, very disturbing’’, issued notices in the matter and barred disclosure of the identity of the judge, the HC and the complainant. According to the Lokpal, HCs were not established under Article 124 of the Constitution unlike the SC. The Lokpal also cited an SC judgement in the 1991 K Veeraswamy case that says, “a judge of the superior court cannot… be excluded from the definition of public servant”.

Justice Gavai and Justice Oka said HC judges are constitutional authorities and not mere statutory functionaries as seen by the Lokpal. The Solicitor General of India and senior lawyers also shared the court’s concern. The office of the Lokpal is headed by a former SC judge Justice A M Khanwilkar. While the Lokpal said the complaints came under the scope of Section 14 of the Lokpal Act, it clarified that it had not gone into the merits of the matter. However, the strongly expressed view in the SC was that Lokpal’s view was wrong. It was noted that the Lokpal overlooked Article 214(1) of the Constitution which mandates the setting up of the HC.

The Constitution also provides protection to HC judges similar to the protection for the President, SC judges, and Election Commissioners. It is clear that the Lokpal’s view would pose a challenge to the independence of the judiciary. It will make HC judges, who constitute most of the higher judiciary, vulnerable and without a strong shield against interference, pressures and motivated attacks. But the case has also drawn attention to the issue of accountability of judges. It has been felt that the existing procedure and mechanism to deal with corruption charges against HC judges needs improvement. There are not many instances of action against HC judges and sometimes, secrecy has surrounded actions. Judicial independence and accountability should go hand in hand, and the Lokpal’s view, unacceptable as it might be, would point to that.