A Bench of the Supreme Court’s senior-most judges headed by Justice B.R. Gavai on Tuesday (March 18, 2025) decided to examine in detail if judges of constitutional courts come within the jurisdiction of the country’s top ombudsman, Lokpal, like public functionaries including the Prime Minister, Union Ministers, Members of Parliament and Central government officials.
“We will consider the issue of the jurisdiction of the Lokpal,” Justice Gavai addressed the courtroom.
The apex court was hearing a suo motu case initiated after Lokpal, through a January 27 order, assumed jurisdiction to investigate complaints against serving High Court judges. The ombudsman classified High Courts judges as public servants who came within the ambit of the Lokpal and Lokayuktas Act, 2013 same as Government Ministers and officials.
The Special Bench had stayed the Lokpal order on February 20, terming it “very disturbing” with a potential to impact the independence of the judiciary.
Appearing on Tuesday before the Special Bench also comprising Justices Surya Kant and A.S. Oka, Solicitor General Tushar Mehta said the “limited question” was whether judges of constitutional courts were indeed public servants under the Lokpal Act.
Can an FIR be registered against a judge
Senior advocate Kapil Sibal, assisting the court, said he wanted to go a “little further” to urge the Bench to examine if criminal complaints against judges could be registered in police stations.
“Can a complaint be ever filed outside the remit of a Constitutional authority. That is the fundamental issue. Can someone go to a police station and register a First Information Report (FIR)?” Mr. Sibal submitted.
Judges’ dilemma: On the judiciary, its accountability
But Mr. Mehta objected to extending the ambit of the suo motu case. He insisted the Bench should confine its present line of enquiry to whether the judges of constitutional courts were public servants under Section 14 of the Lokpal Act.
The top law officer contended that the apex court’s Constitution Bench had already, in a majority judgment in the K. Veeraswami case of 1991, settled the question whether the police could register an FIR against a sitting High Court or Supreme Court judge.
1991 judgment
The judgment of 1991 had categorised judges of the High Courts and the Supreme Court as ‘public servants’ under the Prevention of Corruption Act of 1947. However, the Constitution Bench had held that criminal cases against constitutional courts’ judges could be registered only after consultation with the Chief Justice of India, and, in case, the CJI allowed such an FIR to be registered, the government should, again, consult him on the question of granting sanction for prosecution.
The justification given was that the CJI’s assent was imperative as he was a “participatory functionary” in the appointment of judges. Prior consultation with the CJI was considered a necessary step to protect the independence of the judiciary, a Basic Feature of the Constitution. Though the Veeraswami case had specifically dealt with the Prevention of Corruption Act in judiciary, the majority judgment had extended its ambit to “any criminal case”.
Judges of constitutional courts can also be removed by a parliamentary process on the grounds of “proved misbehaviour or incapacity”. The Judges (Inquiry Act), 1968 regulates the procedure to investigate the judge and the presentation of an address for his removal by the Parliament to the President. The motion for removal of a constitutional court judge must be supported by a special majority of the total membership of the House and at least two-thirds of the members of the House present and voting.
Enquiring into serious allegations
The Supreme Court has further evolved an in-house procedure to enquire into serious allegations against judges.
The Lokpal has now effectively bypassed these long Constitutional and procedural formalities by directly assuming jurisdiction to investigate High Court judges.
In its January 27 order, the Lokpal had found the argument that a High Court judge was outside the ombudsman’s jurisdiction “too naive”. It concluded that a High Court judge came well within the ambit of clause (f) of Section 14(1) of the 2013 Act.
Clause (f) of Section 14 notes the Lokpal has jurisdiction over “any person who is or has been a chairperson or member or officer or employee in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central government or controlled by it”.
The Lokpal interpreted the term ‘any person’ in the clause to include a judge of a High Court. “The 2013 Act does not provide for an explicit exception for the judges of the court established by an Act of the Parliament,” the Lokpal had reasoned.
The ombudsman passed its order on the basis of a complaint received by it about a judge serving in a High Court judge of a State reorganised by an Act of the Parliament, it pointed out.
The Lokpal order had caught the attention of the Supreme Court when it was forwarded, along with the complaint, to the Chief Justice of India for his consultation before launching a preliminary enquiry.
Published – March 18, 2025 01:33 pm IST