While the Judges Protection Act of 1985 gives protection to judges for acts done during the discharge of their duties, they are also made liable for civil, criminal and disciplinary action either on the recommendation of the High Court or the President
By Justice K Sreedhar Rao
The historical origin of judicial immunity can be traced to the era of Justice Lord Edward Coke. The need for judicial immunity was advocated by Justice Edward Coke in Floyd and Barker 77 English Report 1305, 1307 (Star Chambers 1607) for judges of the higher courts, for the reasons that in every litigation there would be one losing party and a winning party. The losing party is always likely to blame the judge concerned and the controversy is bound to embarrass the judge. Besides, such persistent onslaught on the decisions and the judge would shake the will and independence of the judge, ultimately resulting in jeopardizing public confidence in the system. In course of time, protection of judicial immunity was extended to all judges.
In India, the earliest legislative protection was given to judges against civil action in the Judicial Officer Protection Act of 1850 (Act 1850). Section 1 reads:
“1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders. No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.”
The Supreme Court in Anwar Hussain vs. Ajay Kumar Mukherji and Ors. AIR 1965 SC 1651 held that the order of arrest and detention of the plaintiff was not made in bonafide belief in exercise of the jurisdiction. The SDM was found to have been acted recklessly and maliciously, hence the award of damages of Rs 5,000 was upheld. The Allahabad High Court in State of UP vs. Tulsi Ram and Ors. (AIR 1971 ALL. 162) held that the magistrate by non-application of mind erroneously signed a warrant of arrest against a person who has been acquitted by the Sessions Court in a civil action brought against the magistrate. The High Court held that the magistrate was not entitled to protection under Act 1850 although he was un-represented before the High Court. The magistrate was directed to pay Rs 500 as compensation to the aggrieved.
The Madras High Court in Shambhu vs. T. S. Krishna Swamy AIR 1983 P64 held that the remarks made by the Munsif in a transfer application filed before the District Court was held to be defamatory. The magistrate while replying to the allegations made in the petition called the advocate a rowdy goonda and a gambler. Such remarks were found to be unwarranted and beside the point. A private complaint against the magistrate was filed under Section 499, 500 IPC. The Supreme Court held that no sanction under Section 197 CrPC is necessary, since remarks made by the judicial officer had no nexus with the discharge of the official duty. The Supreme Court in Daya Shankar vs. High Court of Allahabad, AIR 1987 SC 1469 upheld the discharge of a Munsif found copying in an LLM examination and dismissed as untenable the plea of protection under the 1850 Act.
The Law Commission in its 104th report made recommendations to change the nomenclature of the Act as Judges Protection Act. The protection is to be given while acting judicially in exercise of any power given to him by law or which in good faith he believes to be given to him by law. The meaning of good faith should be in the sense as defined in the IPC.
The Act 1850 says protection is to be given to judges while acting judicially in exercise of any power given to him by law or which in good faith he believes to be given to him by law.
The Law Commission does not make any reference to the potential provision in Section 219 of IPC which reads thus:
“219. Public servant in judicial proceeding corruptly making report, etc., contrary to law — Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
It is desirable that S.219 of IPC be amended after the words “contrary to law” to incorporate “or contrary to evidence on record” however, with an explanation that bonafide and honest error of appreciation of evidence shall not constitute an offence of rendering the decision or order etc., contrary to evidence on record.
The Act 1850 envisaged conditional protection only against civil action. A judge is defined as a public servant in the IPC. The criminal liability of the judge is dealt in S. 219 of Indian Penal Code, 1860. S.219 makes a judge liable for criminal prosecution when the named acts in S219 done in discharge of his judicial duties under the named conditions. It is obvious that the limited protection to a judge under S.219 is not available for the acts done outside the discharge of judicial duties.
JUDGE (PROTECTION) ACT, 1985
Consequent to the recommendation, parliament enacted the Judge (Protection) Act, 1985. Pertinent and relevant provisions of the Act in Section 3 and 4 are:
3 (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2) No Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-sec.(1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.
4. The Provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges.
JUDGE IS LIABLE
The Judges Protection Act of 1985 in the first blush appears to give blanket protection in S.3 in respect of acts done in the discharge of his duties as a judge or otherwise. But on deeper scrutiny, the erring judge is comprehensively made liable for civil, criminal and disciplinary action. However, for initiating a civil or criminal action, sanction becomes necessary. In the scheme of constitution for the members of the district judiciary, the recommendation of the High Court becomes necessary for the governor to accord sanction for civil or criminal prosecution. The requisites envisaged under Act 1850 for civil prosecution and S.219 of the IPC for a criminal prosecution would become relevant for consideration while according the sanction for prosecution.
Till now, there are no cases reported granting sanction for civil/criminal prosecution against a judge for the acts done in discharge of judicial function or otherwise. The situation is only at the stage of enduring whisper and simmering discontentment against corruption in district judiciary. The vigilance section in some of the High Courts appears to lack effective investigative procedures in respect of anonymous/ pseudonymous/named complaints. A stereo-typed procedure of discreet enquiry by the District Judge/Registrar, vigilance does not appear to be an effective and foolproof method. A more effective procedure and methods have to be evolved. In respect of the named complaint, endorsement of receipt should be given to the complainant. The complainant participation in the enquiry is natural. Even if the witness does not support the statement given by him to the investigative authority, a greater probative value should be given to the evidence of the investigating authority who has recorded the statement of the witness. The Evidence Act and the law applicable to the statements recorded by the police U/S 161 of CrPC would not apply to disciplinary proceedings.
The Supreme Court in the Veeraswamy Vs. UOI 1991 (3) SCC 655 has held that prosecution of a sitting judge can only be done after obtaining sanction from the President of India, who in turn shall consult the CJI and the opinion of the CJI would be binding on the President.
The final report should be furnished to the complainant. When the delinquent judge is found guilty, no complacence or grace is to be shown against him by imposing only disciplinary punishment without civil or criminal prosecution. If the facts warrant upon the request of the complainant, sanction for criminal or civil prosecution should be accorded. If the acts or omissions committed by the delinquent judge are found to be an offence of serious nature, the chief justice should direct the registry to give a complaint against him for criminal prosecution. The enquiry rules have to be framed/amended to punish the person who makes a false complaint.
The onus of effective implementation of the Judges Protection Act lies upon High Courts to fulfill the legislative promise of checks and balance of judicial immunity and accountability for providing speedy and unpolluted justice to the citizenry of this country.
Coming to judicial immunity for judges of the higher judiciary, they are governed by the constitution of India. Article 124 (4) and Article 218 lay down that judges of the Supreme Court and High Courts shall not be removed from office except by an order of the president. This will be passed after an address by each house of parliament, supported by a majority of the total members of that house and by a majority of not less than two-third members of that house present and voting on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for investigation and proof of misbehavior or incapacity of a judge. Consequent to the said provision, the parliament has enacted the Judges (Inquiry) Act, 1968 to give procedural mobility.
The Supreme Court in Ravi Chandran Ayyar vs. Justice M. Bhattacharjee reported in 1995 (5) SCC 457 held that Article 124 (4) and 218 deal with the removal of the judges for proved misbehavior or incapacity. It further held that the conduct of the judge should not be discussed in parliament under Article 121. The discussion of the conduct of the judge or any evaluation or inference of its merit not permissible elsewhere except during investigation by the enquiry committee constituted under the Act for the purpose. The Supreme Court in the Veeraswamy Vs. UOI 1991 (3) SCC 655 has held that prosecution of a sitting judge can only be done after obtaining sanction from the President of India, who in turn shall consult the CJI and the opinion of the CJI would be binding on the President. However, after retirement, no sanction is necessary for prosecution for criminal acts or omission committed by a judge while in office.
The Supreme Court while hearing the NJAC case pointed out lapses on the part of the executive in not sharing and giving effective consultation in the matter of elevation of judges. It is a fact that the ministry of law and justice would have necessarily received complaints regarding the misconduct and misbehavior of the judges. Upon proper verification, the executive should have taken necessary action as per the provisions of Art. 124 (4) by moving a resolution before any of the houses of parliament for enquiry under the Judge’s Enquiry Act. The lapses on the part of the executive in not apprising parliament appear to have dented the image of higher judiciary to some extent. However efforts are under way to legislate the judicial standards and accountability for judges of the Supreme Court and High Courts. As of now, the law of judicial immunity and accountability is governed by Article 124 and 218 of the constitution.
—The writer is former acting Chief Justice of Karnataka High Court and Gauhati High Court
Lead illustration: Anthony Lawrence