K Veeraswami v Union of India

Facts

• The appellant had held office as the Chief Justice of a High Court.
• He was prosecuted under the Prevention of Corruption legislation on the allegation of being in possession of pecuniary resources and property disproportionate to his known sources of income.
• He contended that a Judge of the Supreme Court or of a High Court is not a "public servant" as defined in the Act, since he is not appointed by or removable at the will of the Government and holds a constitutional office.
• He further contended that the Constitution provides an exclusive mechanism for dealing with the misconduct of a Judge, namely removal by an address of both Houses under Art.124(4) read with Art.218, and that this excludes the criminal law.
• It was also urged that permitting prosecution at the instance of the executive would expose the judiciary to harassment and undermine its independence.

Issue

1. Whether a Judge of the higher judiciary is a public servant amenable to prosecution for corruption, and if so what safeguards attend such a prosecution.

Held

• The prosecution was held competent. A Judge of the Supreme Court or of a High Court is a public servant within the Act, since he holds an office of public duty and receives remuneration from public funds. Article 124(4) deals with the wholly different question of removal from office and cannot be read as granting immunity from the general criminal law, for otherwise a Judge would occupy a position above the law which the Constitution nowhere confers. But the Court was alive to the risk of misuse, and laid down a safeguard as a matter of constitutional propriety: no criminal case shall be registered under the Act against a Judge of the higher judiciary unless the Chief Justice of India has been consulted and has sanctioned it; and if the allegation concerns the Chief Justice of India himself, the President is to consult other Judges of the Supreme Court. Verma J dissented in part.

Ratio Decidendi

Equality before the law admits of no exception for the judiciary, and an immunity from prosecution would be inconsistent with the rule of law which the courts themselves exist to uphold. At the same time, if the executive could institute proceedings against a Judge at will, the threat of prosecution would itself compromise independence. Interposing the Chief Justice of India between the executive and the Judge reconciles the two, because the decision to permit prosecution is then taken by the head of the judiciary rather than by the largest litigant before it.