New Delhi: Separated from the Lokpal’s argument to include the judges of the High Court within the Remit of the Lokpal Act, the Center has informed the Supreme Court that all HCs have been nominated as constitutional offices. Therefore, they cannot be considered as officers or bodies established under a parliamentary law, against which the anti -corruption guards may exercise their jurisdiction to order an inquiry involving a sitting judge in a graft case.
The position of the Center on the matter was rushed to the court through written submissions settled by Solicitor General Tushar Mehta. He was presented to a special bench of three judges under the leadership of Justice Bra Gavai, which is set to handle the office of the Chief Justice of India in May. The other two judges are Justices Suryakant and Abhay Oka.
A special bench was formed in January to address a reference made by the Lokpal, headed by former SC Judge Justice M Khanwilkar. In a judgment pronounced on 27 January, Justice Khanwilkar ruled that the High Court is a body under the Lokpal Act, 2013 and therefore, a seated HC Judge comes under the purview of the Act, which leads to the investigation of receiving corruption complaints.
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On 20 February, the special bench took cognizance of the Lokpal’s decision and issued a notice to the Center and the complainant and maintained its implementation, whose petition led the Lokpal’s opinion.
On Tuesday, a three-judge bench postponed the hearing of the case, appointing senior advocate Ranjit Kumar as Amicus Curia to assist the court.
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Constitutional status of high courts
In his presentation, Mehta underlined the constitutional status of the High Courts, as recognized in various decisions of the Supreme Court. He said that his establishment lies in Article 214 of the Constitution, citing several SC rules confirming this situation.
He further argued that this is a well -established legal principle that a High Court judge holds a constitutional office and cannot be considered a government employee.
Based on this, the Center argued that the decision to include the decision of the Lokpal Act in Section 14 (1) (F) of the Lokpal Act was wrong.
“In this regard, it can be noted that the word ‘any person’, as mentioned in Section 14 (1) (F) of the 2013 Act (Lokpal), should refer to a ‘Chairman’ or ‘Member’, and said the submission of Mehta as an High Court established by the Board, or an Act of the corporation.
He further argued that defining a High Court as an body or authority established by an Act of Parliament will reduce its freedom.
Quoting the previous SC ruling, the Center stated that a High Court judge holds a unique place as a constitutional office-guard. Submission said, “He should be able to discharge his duties without any fear or favor, affection or sick desire, which will not be possible until he remains completely independent from the executive.”
Legal difference between constitutional and statutory bodies
The submission of the Center underlined the fundamental difference between Article 214 of the Constitution, under which High Courts are established, and various acts of Parliament, which create statutory bodies, officers or corporations.
“It has been presented that a bare reading of these provisions clearly shows the difference in the language of parliamentary acts when they establish bodies, boards or officials,” the Center argued.
The submission of the Solicitor General also addressed the Lokpal’s argument to claim jurisdiction on the High Courts established under the state’s restructuring laws, which were implemented to formally create new states like Chhattisgarh, Uttarakhand and Telangana.
The Center said that the Lokpal’s decision wrongly divided the existing High Courts and divided them separately from others by treating HCS of these three states.
In addition, the provision of appointment of a High Court judge in each of the three state restructuring laws – under which these new High Courts were established – was deliberately prepared to reflect the provisions of Article 214.
It was done to ensure that the newly established High Courts were recognized as constitutional bodies. The word, the Center in these laws, said, the contradiction with the terminology found in parliamentary laws, which clearly explains: “an authority will be established.” Such phrases are usually used for statutory bodies, corporations, or authorities, stating that the High Courts are constitutionally different.
The Center further criticized the incompatibility in the Lokpal’s perspective, highlighting that the same Lokpal had said in a separate judgment that SC judges do not come under its jurisdiction as the Supreme Court has been established under Article 124 of the Constitution. The Center argued that the same principle should also be implemented to the High Courts.
By making this distinction, the Center said that the Lokpal had erased the High Court judges in an effort to bring them under their purview, as they hold the same position as the Supreme Court judges in the context of constitutional rights and freedom.
(Edited by Ridififa Kabir)
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