Are High Court judges above the Rule of Law | Supreme Court stays Lokpal Order on High Court Judges

On 20th February, the apex court’s special bench comprising of Justices BR Gavai, Surya Kant and AS Oka stayed a Lokpal order stating that High Court Judges of India fall under the purview of ‘Public Servants’ and thus can be tried under the special court of Lokpal. The supreme court took Suo Moto cognisance of the matter on 19th February. The 13-page order of Lokpal was passed by a seven Judge bench headed by former supreme court judge A.M. Khanwilkar. The supreme court took the view that all judges be it High Court or Supreme Court are appointed by the constitution whereby they are exempted from falling within the jurisdiction of a statutory body.

The Lokpal order in question was passed after a complaint was filed against a sitting judge of a High Court. The complaint alleges that the additional judge of a high court attempted to influence a sitting District Judge and another High Court judge of his court to rule in favour of a certain private company. It is being also being alleged that the private company in question used to be the client of the accused high court judge before he was elevated to the bench. The Lokpal has decided to admit the complaint but not to release the name of the judge in question. The Lokpal has first decided that high court judges fall under the status of Public Servants as enshrined by the Landmark K. Veeraswamy Judgement and thus can be tries under section 14 of the Lokpal and Lokayuktas Act 2013.

The Lokpal is an anti-corruption statutory body which is established under the Lokpal and Lokyuktas Act 2013 which prosecutes corruption allegations against public servants. The reasoning behind Lokpal’s order was that many high courts were established by the British Parliament and were later ‘recognised’ by the Indian constitution so they should be considered institutions established by the parliment and thus recognised under the jurisdiction of the Lokpal and Lokyukta Act, 2013. The Lokpal did consider the K. Veeraswamy case and asked for Chief Justice’s permission before proceeding further with the case. Supreme Court’s view in putting a stay to this order was to preserve judicial independence. The Apex Court held that bringing high court judges under the Lokpal’s jurisdiction would not make the judiciary independent which is an essential part of the Basic Structure Doctrine. The court also affirmed that any misconduct on behalf of the judges should be handled internally by the judiciary itself not through any external body.

But the view taken by the Supreme court raises a very fundamental question which is that are judges above the rule of law ? The reasoning of supreme court to handle judicial misconduct internally raises impunity and is against the spirit of natural justice. The judiciary cannot begin to provide immunity to judges in the name of judicial independence and taking oath on the constitution. The judiciary cannot run on self-regulation and if it does then it demeans the very concept of Checks and Balances between Legislature, Judiciary and Executive. The very purpose of Lokpal is defeated if it cannot bring to justice to those in power. By staying the order of Lokpal, the apex court risks sending the message that judges are above the very law that they defend every day.