Skirmish Tussle Between Judicial Independence & Transparency

Disclaimer: Opinions expressed are solely my own and do not express the views or opinions of any other. As I’m in the learning stage, I’m open to corrections if the faults recognized are sent in the comment section given below.

Lord Montesquieu, through his book The Spirit of Laws, was the proponent of the Doctrine of Separation of Power, which was further globally recognised and consequently established the three institutions/organs/branches of government in the State referred to as Legislature (which makes laws), Executive (which implements laws) and Judiciary (which adjudicates laws) in order to distribute the political power appropriately.

As we all know, the Independent India has its roots deeply entrenched in the colonial legacy, it adopted the Constitutional Supremacy motto as against Britain’s Parliamentary Sovereignty. Thus, the Constitution of India has been the supreme legal document that governs India since 1950. 

The above brief synopsis is to be further underlined in analyzing the ongoing debate along the lines of the commotion that erupted in the aftermath of the alleged discovery of around 15 crore rupees in unaccounted cash in the residence of Delhi High Court Judge. However, the main focal line of the blog is linked by backtracking to the parallel issue of whether Lokpal has jurisdiction over the High Court Judges under the Lokpal and Lokayuktas Act of 2013, where the case pertaining to it is lis pendens.

The Hon’ble Supreme Court had taken suo moto cognisance of the case and had previously stayed a Lokpal Order that had given itself jurisdiction over High Court Judges. The anti-corruption ombudsman is of the view that High Court judges were ‘public servants’ and came within the ambit of the 2013 Act. Under Section 14(1)(f) of the Lokpal Act that states “any person who is or has been a chairperson or member or officer or employee in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central government or controlled by it,” here the term ‘any person’ would include a judge of a High Court established by an Act of Parliament is what Lokpal reasoned.

As a matter of fact, High Courts pre-dated the Constitution and unlike the Supreme Court, the High Courts in India were constituted by British Parliamentary Acts like Indian High Courts Act 1861, Government of India Act 1935, and Letters Patent of the British Monarch. Lokpal also legally reasoned that, unlike the Supreme Court, which was completely a child of the Constitution, the anti-corruption ombudsman further clarified by declaring that it did not have power over Supreme Court judges, including the Chief Justice of India (CJI). It also explained that the Supreme Court was not a “body” established by an Act of Parliament or financed or controlled by the Central government. It also observed that SC judges, including the CJI, even though ‘public servants’ in terms of the Prevention of Corruption Act of 1988, were not amenable to the jurisdiction of the Lokpal.

However, under Article 214 of the Indian Constitution, which stated “there shall be a High Court for each state," Lokpal had only “intrinsically recognised” the existence of the High Courts, thereby realizing that the Constitution did not establish the High Courts, and hence Lokpal argues that it can have jurisdiction to inquire or investigate complaints about High Court judges.

A Special Bench of the Supreme Court, which is currently dealing with the above controversial Lokpal Order, would have to carefully navigate through this turmoil that the judicial fraternity is enduring. In order for "Justice” as a principle commonly obtained from courts to firmly remain in the confidence of the people, the Ultimate Interpreter of the Constitution (‘Hon’ble Supreme Court’) would have to analyse the significant legal ramifications before declaring the verdict, which deals with the primary question of whether judicial independence takes precedence over transparency or vice-versa amidst these upheaval times.

1. https://oll.libertyfund.org/pages/montesquieu-and-the-separation-of-powers
2. http://scobserver.in/journal/sc-hears-suo-moto-case-on-lokpals-jurisdiction-over-sitting-high-court-judges/
3. The HINDU Newspaper