Calling it “something very, very disturbing”, the Supreme Court Thursday stayed the Lokpal’s January 27 order which held it had the power to look into complaints against sitting judges of High Courts. The top court had taken suo motu cognizance of the January 27 order and listed it for hearing before a bench headed by Justice B R Gavai and also comprising Justices Surya Kant and A S Oka. “Something very, very disturbing,” Justice Gavai said as the bench issued notice to the Centre, Lokpal and the complainant in the matter. It directed its registrar judicial “to mask the identity of the complainant and serve him through the Registrar Judicial of the High Court where the complainant resides”. It injuncted the complainant from disclosing the name of the judge against whom the complaint had been filed, or from disclosing contents of the complaint. Solicitor General Tushar Mehta, appearing for the Centre, said that according to his interpretation of the relevant provisions in the Lokpal and Lokayuktas Act, 2013, which the Lokpal had relied upon, “the High Court judge would never fall within the ambit of the Lokpal Act. There are constitutional provisions and some judgements to show this.” Senior Advocate Kapil Sibal agreed with the remarks that it was “very, very disturbing” and said it was “fraught with danger.” It was necessary, he said, to lay down the law. Justice Gavai and Justice Oka expressed the view that after the commencement of the Constitution, High Court judges are constitutional authorities and not mere statutory functionaries as the Lokpal had concluded. “And each judge is the High Court,” Mehta said. The order of the Lokpal, headed by former Supreme Court judge Justice A M Khanwilkar, came on two complaints against a sitting Additional Judge of a High Court, “alleging that the named judge had influenced the concerned Additional District Judge,” in a state “and a Judge of the same High Court who had to deal with the suit filed against the complainant by a private company, to favour that company. It… alleged that the private company was earlier a client of the named High Court Judge, while he was practising as an advocate at the Bar”. Deciding this, the Lokpal order said that unlike the Supreme Court, established under Article 124 of the Constitution of India, the High Court concerned was established by an Act of Parliament and therefore “it will be too naive to argue that a Judge of a High Court will not come within the ambit of expression ‘any person’ in clause (f) of Section 14 (1) of the Act.” The ruling referred to the majority view in the 1991 judgment K Veeraswamy vs. Union of India, and said that according to this, “a Judge of the superior court cannot… be excluded from the definition of public servant and would squarely fall within the purview of the Prevention of Corruption Act, 1947”. “Applying the underlying principle and the logic as given in this reported decision, the expression ‘any person’ in Section 14(1) (f) of the Act of 2013 must include a Judge of the High Court established by an Act of Parliament as well,” it stated. The Lokpal also noted that as per the Veerswami decision, no criminal case shall be “registered” against a judge of the High Court, Chief Justice of High Court or judge of the Supreme Court, unless the Chief Justice of India is consulted in the matter. January 27 order said an inquiry ordered by the Lokpal “is and would be prelude to issue of direction to the investigating agency to register a criminal case against the named public servant and to investigate the same under the supervision of Lokpal,” and the appropriate measure would be to approach the Chief Justice of India first. It directed that the complaints and relevant materials be forwarded to the office of the CJI for his consideration. The Lokpal also clarified it had not gone into the merits of the matter. “We make it amply clear that by this order we 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. No more and no less. In that, we have not looked into or examined the merits of the allegations at all,” it stated. The Supreme Court will hear the matter next on March 18. The bench’s order Thursday also recorded that Sibal and Senior Advocate B H Marlapalle “have graciously offered to assist the court since the matter is of great significance concerning the independence of the judiciary”.
