IN connection with the drafting of the Jana Lokpal Bill, opinion appears to be divided on the question whether Judges of the Supreme Court and High Courts should also be brought within the jurisdiction of Lokpal?
I am of the considered opinion that having regard to the scheme of the Constitution and the exalted position assigned to the Supreme Court under the Constitution the answer to the question has to be in the negative in view of the seven judges bench unanimous decision in L Chandra Kumar’s case [1997 (3) SCC 261] striking down Article 323-A(2)(d) and Article 323-B(3)(d) introduced by the 42nd amendment to the Constitution providing for exclusion of the jurisdiction of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution as violating of the element of basic structure of the Constitution. In fact, I have had the occasion to analyse this aspect as a High Court judge and later after retirement, as Senior Advocate of the Supreme Court.
By the 42nd amendment to the Constitution, Article 323-A and 323-B were added to the Constitution. Article 323-A provided for the constitution of Administrative Tribunals having exclusive jurisdiction over service matters pertaining to civil servants of Central Government and State Governments. Article 323-B was inserted providing for the constitution of a separate tribunals in respect of various other matters specified in the said Article and for the exclusion of the jurisdiction of the Supreme Court under Article 32 of the Constitution and of the High Courts under Article 226 of the Constitution in respect of those matters decided by those Tribunals. On the constitution of the Administrative Tribunals, cases came up before the Karnataka High Court in which the question was “whether all service matters including those in which the question relating to the constitutional validity of service laws were involved, were required to be transferred to the Administrative Tribunals? Having regard to the provisions of Article 228 of the Constitution, which conferred exclusive jurisdiction on the High Courts to decide questions relating to the interpretation of the provisions of the Constitution, I held that the jurisdiction of the High Court in respect of all service matters in which the question of constitutional validity of service law are involved, continues with the High Court and there is no obligation to transfer such cases to the Tribunal.
Accordingly, only the services matters in which the questions other than the constitutional validity of the provisions were involved were transferred to the Administrative Tribunals. Subsequent to this decision, the question for consideration before the Supreme Court in the case of Sampath Kumar [1987 (1) SCC 124] was whether the provisions of Article 323-A and 323-B which authorises exclusion of the jurisdiction of the High Courts was constitutionally valid?
Constitution Bench of the Supreme Court in Sampath Kumar’s case held that it was competent for the Parliament to constitute Administrative Tribunals which is equal to that of the High Courts and therefore all service matters irrespective of the question whether they involve constitutional validity of any service law, they are required to be decided by the Tribunals constituted under the Administrative Tribunals Act and that from the decision of the Administrative Tribunals the only remedy available to the aggrieved party was to file Special Leave Petition under Article 136 of the Constitution to the Supreme Court and the High Courts have no jurisdiction at all in service matters.
This Constitution Bench decision of the Supreme Court held the field for about ten years. After retirement as judge of the High Court, I got enrolled as Senior Advocate in the Supreme Court of India. In one of the cases I raised the question of constitutional validity of Article 323-A and 323-B providing for exclusion of the jurisdiction of the High Court as it violates the basic structure of the Constitution contending that the power of judicial review and power to issue writ under Article 226 by the High Courts was a basic structure of the Constitution and such jurisdiction cannot be taken away even by amendment to the Constitution. The question raised required reconsideration of the constitution bench judgment of the Supreme Court in the case of Sampath Kumar [1987 (1) SCC 124]. Therefore, the matter was referred to a larger bench of seven judges before whom I had the opportunity of arguing the matter. The first question raised in the said case reads:
“Whether the power conferred upon the Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of ‘all courts’ except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution?
The said bench after elaborate hearing, delivered judgment on 18-3-1997. The Bench held as follows:-
Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.
Section 28 of the Administrative Tribunals Act, 1985 and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B are, to the same extent, unconstitutional.
The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution of India.
From this decision, it follows that the Lokpal which is proposed to be brought into existence by an act of the Parliament would be amenable to the writ jurisdiction of the High Courts under Article 226 as also to the jurisdiction of the Supreme Court both under Article 32 and Article 136 of the Constitution of India. Even if an amendment to the Constitution were to be made providing for excluding the jurisdiction of the Supreme Court and the High Courts in respect of matters falling within the jurisdiction of Lokpal, such provision would be unconstitutional and liable to be struck down in view of the ratio of the judgment of the Supreme Court in L. Chandra Kumar’s case [1997 (3) SCC 261].
In fact, in the said case, two of the members of the Committee entrusted with the responsibility of drafting of Jan Lokpal Bill, were also Advocates who argued the said matter. The said judgment is an important land mark in the history of interpretation of the provisions of the Constitution. In the light of this judgment, it is incongruous and unconstitutional to bring the judges of the Supreme Court and the High Courts within the jurisdiction of the Lokpal.
I do agree that present impeachment provisions against Supreme Court and High Court judges is most difficult and impractical. But, that is no reason to bring them under Lokpal and bring them down from the exalted position designedly assigned to them by the founding fathers of the Constitution. However, in view of complaint against a few of them, an alternative and suitable procedure to take action against Supreme Court and High Court Judges against whom a prima facie case is made out by proper judicial scrutiny, should be made separately but without adversely affecting their security of tenure which is essential to be independent and fearless.
As far as bringing the Prime Minister also within the jurisdiction of the Lokpal, it is a matter of high policy, but there is no constitutional bar. However, on the question whether it would be wise and in the interest of the Nation to bring the Prime Minister within the jurisdiction of Lokpal, there are weighty reasons on both sides and a careful decision has to be taken.
(The writer is Member of the Parliament, (Rajya Sabha), Former Chief Justice of Punjab and Haryana High Court and former Governor of Jharkhand & Bihar).