Supreme Court stays a Lokpal order on a High Court judge on a corruption complaint

A Lokpal order probing a corruption complaint against an unnamed High Court judge was stayed by the Supreme Court last week.

Under the Lokpal and Lokayuktas Act, 2013, the Lokpal bench, headed by former Supreme Court judge A M Khanwilkar, said on January 27 that it had the power to consider corruption allegations against former judges.

SC's justification

The Supreme Court has recognized judge criticism in the past, but its response has always been consistent with its guardianship efforts. The Supreme Court has sought to provide safeguards against potential cases of executive overreach.

A Lokpal order probing a corruption complaint against an unnamed High Court judge was stayed by the Supreme Court last week.

Section 77 of the IPC says that a judge cannot be tried for an offence if the allegation relates to the discharge of her official functions. That’s why the Lokpal bench, headed by former Supreme Court judge A M Khanwilkar, said in its January 27 judgement that it had jurisdiction to hear complaints of corruption. The Bharatiya Nyaya Sanhita, 2023 reproduces this clause in Section 15.

An additional bulwark was provided by the Supreme Court in K Veeraswami v. Union of India (1991). Justice Veeraswami, the then Chief Justice of the Madras High Court, had moved the SC seeking to restrain the CBI from investigating him in a case of disproportionate assets. The SC held that he was a “public servant” and could be investigated for offences under the 1947 Prevention of Corruption Act (since superseded by the 1988 PCA).

But the court also said that a criminal case against a judge should be sanctioned by the President only after consulting the Chief Justice of India with a view to “protect a Judge from frivolous prosecution and unnecessary harassment. ” The CJI’s advice would be binding on the President.

“Section 14 of the Lokayukta Act shall apply to public servants in and outside India” (see para. 2 above). Section 14(f) defines a public servant as “any person who is or has been a chairperson or member or officer or employee in any... autonomous body... established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it. ” Judges are not specifically included in this list.

Using that definition, the Lokpal ruled in another case in January that it was not allowed to hear cases against SC judges (it ruled that Article 124 of the Indian Constitution rather than a “Act of Parliament” established the Supreme Court).