The publication of the Justice Committee Report (1961) in England, favouring the adoption of the ombudsman system, was a watershed moment for India. At the time, corruption allegations against the Indian political classes were leading to mass-level resentment. Civil society and opinion makers found a panacea in the ombudsman system and started demanding a similar body, namely the Lokpal. Unfortunately, it took more than half a century to become a reality under the Lokpal and Lokayuktas Act, 2013. India got its first Lokpal in 2019, that too after repeated prodding by the Supreme Court. However, the debate over the Lokpal’s ambit continues to shape the legal and political discourse whenever allegations of corruption come forth.
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On January 27, the full bench of the Lokpal heard a case filed by a complainant against a sitting additional judge of a high court (HC) on the charge of influencing an additional district judge and a judge of the same HC to favour a private company. It was also alleged that the private company in question was an earlier client of the named HC judge while he was practising as an advocate. The charges were indeed serious, amounting to misuse of official position. The Lokpal proceeded with the case, considering the HC judge a public servant under section 14(1)(f) of the Lokpal Act.
In doing so, the Lokpal bench relied on the majority judgment of the Supreme Court (SC) in K Veeraswami vs Union of India (1991), wherein it was “plainly expounded that 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 (analogous to the Act of 1988)”. In the Lokpal’s view, the definition of a public servant in section 2(1)(o) of the Act of 2013 explicitly excepts only one category of officials or public servants from the jurisdiction of the Lokpal: Those who come under the jurisdiction of a court or other authority under the Army Act, 1950, the Air Force Act, 1950, the Navy Act, 1957 and the Coast Guard Act, 1978. The Lokpal Act did not provide for such an exception for judges of Constitutional courts and others established by an Act of Parliament. The exceptions must come within sub-clause (f) of sub-section (1) of section 14 of the Lokpal Act. This created a new difficulty for the judiciary as it has the potential to open a Pandora’s box. However, before proceeding further, the Lokpal bench moved cautiously.
The SC in the Veeraswamy case said that to protect a judge from frivolous prosecution and unnecessary harassment, the President of India would consult the CJI, who would consider all the material placed before her/him and would give advice on filing an FIR. In compliance with the operational part of this judgment, the Lokpal bench forwarded the complaints and relevant materials received in its registry to the office of the CJI.
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Taking suo motu cognisance of the Lokpal’s January 27 order, a special three-judge bench of the SC comprising Justices Bhushan R Gavai, Surya Kant and Abhay S Oka suspended the Lokpal’s order, and called the anti-corruption authority’s interpretation of its own jurisdiction “very disturbing”. The matter has been posted for next hearing on March 18, 2025.
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A historical glance at the global ombudsman system tells us that, except for Sweden, where the institution originated in 1809, and Finland where the system came into shape in 1919, the judiciary is exempted from its jurisdiction. In India, the dominant idea has been to not keep the judiciary within the Lokpal’s ambit. The earlier drafts of Lokpal bills (1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001) indicate the same. The latest order of the Lokpal treating HC judges as public servants raises several questions. Till now, the higher judiciary has been treated as sacrosanct, though there have been discussions on the allegedly increasing level of corruption in the HCs. In March 2022, the then law and justice minister, Kiren Rijiju, had informed the Lok Sabha that as many as 1,631 complaints about the functioning of the judiciary, including judicial corruption, were received in the Centralised Public Grievance Redress and Monitoring System between January 1, 2017 to December 31, 2021 and were forwarded to the CJI and the chief justices of the high courts.
There is no easy channel available with the citizenry to deal with the increasing perception of judicial corruption. This underlines the need to bring the judiciary, too, under some sort of oversight, an anti-corruption agency. Who will judge the judges? This needs serious thinking and matching action if the reverence for the judiciary, and its reputation, are to remain intact in times to come.
The writer is a retired professor of Political Science, Banaras Hindu University. He has extensively researched on Lokpal and Lokayuktas
