Under the Judges (Protection) Act, judges have protection for decisions rendered in the course of their duty. Yet, quite often, they are made parties to judicial proceedings, though this is neither “necessary” nor “justified”

By Prof Upendra Baxi

There is an unanimity of elite opinion that Justices should have personal protection for decisions they render in the course of their judicial duty. That principle was enshrined in an 1850 Act. Even if colonial, the statute is remarkably brief and besides the Preamble consists of only one operative section conferring wide protection on judicial officers and persons executing decrees and orders passed by the judiciary in exercise of its functions. And the protection was extended to a judge even if she acted in excess of jurisdiction, provided she acted in “good faith”—which according to the IPC covers only acts which are done with “due care and attention”.

But the Law Commission of India further considered revisions suo motu (in a learned report by Justice KK Mathew—the 104th Report, October 10, 1984). It proposed an extension of that Act India-wide (excluding the state of Jammu and Kashmir as was the practice then) and brought it more in line with the Indian Penal Code definition of a judge. The Commission proposed: “No Judge shall be liable to be sued in any Civil Court for anything … done by him, when acting judicially in the exercise of any power which is given to him by law, or which in good faith he believes to be given to him by law….” And Section 78 of the Code protects acts in pursuance of any judicial order even when the Court “may have had no jurisdiction to pass such judgment”.

The 1850 Act was finally amended in 1985 and importantly, enacts an inclusive definition of a judge as extending to an individual or is a “body of persons which is empowered by law to give in any legal proceeding a definitive judgment”. The latter term includes a judgment which on “appeal would be definitive” or “if confirmed by some other authority, would be definitive”. Further, “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”. The protection is extensive and applies to ex-judicial persons as well.

However, plenary powers are now vested in the government (central or state) or the Supreme Court of India or any High Court or any other authority under any law in force to take “to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge (Clause (2), Section 3). These appear vast but in reality, their arc is quite small. The Constitution of India requires that “any law in force” is subject to the judicial test of “reasonableness”; a law reeking with arbitrariness is not a valid law. Besides, the law may have to meet the basic structure and essential features doctrine (as developed by the apex court) when invoked as a technology of statutory construction. This clause does not trench on constitutional powers or allow any authority to assume disciplinary action. However, any infarction of judicial powers may not be authorised by a law. Despite the powerful judicial presumption of the validity of all laws, the law prevails only if the action under it is held constitutionally valid.

All this may be fine, but in practice, judges have been made parties to judicial proceedings, though in 1999 (Savitri Devi), the Allahabad High Court described the tendency of impleading judicial officers by name and the institutional designation as a “disturbing” practice. It continues to prevail even now. Most recently (on September 15, 2020), the Gauhati High Court (per Chief Justice Ajai Lamba) in Rahebra Bagari v Sub-Divisional Magistrate strongly deprecated this practise as neither “necessary” nor “justified”.

The Court emphatically stated that such a practice “shall result in demoralising judicial officers” and cause the “loss of public faith” in specific orders as well as the judicial system as a whole. An appeal or review of the order, it further stated, may be a legitimate step towards judicial accountability, but it is not fostered at all by impleading judicial officers, who are fully protected in acting judicially by the 1850 and 1985 Act. Taking a “serious view” of the “complete disregard” of the law, the learned chief justice dismissed the petition and awarded Rs 10,000 to be deposited with the  Assam Legal Services Authority.

We do not have empirical research to suggest that this practice is a widespread feature of the organised Bar, but the fact that some lawyers still implead judges despite the legislative prohibition, and judicial strictures, warrants some determined action. Should not the Bar Councils and the national Bar Council draw renewed attention of all lawyers to the statutory provisions and judicial despair? Should not the registry of courts have the petitions amended according to law before reaching the judicial docket? And how about suitably amending all the Supreme Court and High Courts Rules to secure total compliance?

If the Bar is concerned in principle with some immunity conferred on judges, a constitutionality challenge to the legislations can, of course, be made, but to the best of my knowledge, this has not been done.

Yet, we must end with a puzzle: may even the Chief Justice of India (CJI) be expected or required by the Court to file affidavits and counter-affidavits? Further, should this high constitutional official be exposed to the requirement of judicial deposition in open court? Should this high office be further exposed to an adverse inference in case the CJI does not further depose, personally or though lawyers? This is what nearly happened when the entire Bar was a party to the decision in the First Judges case!

Chief Justice Yeshwant Chandrachud filed a counter affidavit to Chief Justice KBN Singh of the Patna High Court (on 21 September 1981), but did not depose. Chief Justice KBN Singh responded (October 18, 1981); both these are reproduced as appendices to my book Courage, Craft, and Contention, 1985). Justice DA Desai examined this affidavit devastatingly and Justice PN Bhagwati agreed, highlighting his own reasons. I believe that this action was violative of the 1850 Act, but so overwhelmingly concerned everyone was with the question of “Crown” privilege (which stymied judicial accountability) that this issue was not even raised. What would have happened if the Court had rejected the CJI affidavit? Justice PN Bhagwati went so far as to describe some averments as “delightfully vague”.

The deeper question concerns the meaning of judicial duty in the context of the judicial collegium which decides on the elevation of Justices to the Supreme Court and transfer of High Court Justices. Are these acts purely administrative performances or acts of high fidelity to judicial duty? No person has a right, fundamental or any other, to be appointed a judge nor when once appointed any immunity from transfer to another jurisdiction. But how may the duty to give objective reasons for decisions, (as stipulated by the apex court itself in a catena of decisions) extend to any judicial collegium?

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

A recent webinar drew attention to Justice Yashwant Vishnu Chandrachud who was part of Kesavananda, helped navigate it through a period of harsh constitutional majoritarianism and presided over a brilliant constellation of co-equals

By Prof Upendra Baxi

The 100th birth anniversary of Justice Yashwant Vishnu Chandrachud on July 12, 2020, went relatively unnoticed. But a grateful nation must do more than celebrate the birth anniversaries of political and economic actors. The event was rescued from public oblivion by a webinar organised by the Indian Law Society and ILS Law College, which cherished fond memories of Justice Chandrachud not merely as a long serving chief justice of India but also a distinguished alumnus of the ILS Law College from 1940-42.

Justice DY Chandrachud, his son, delivered a thoughtful address on “A Changing Society and Constitutional Continuity – Experiences in the Pursuit of Justice” and Justice RF Nariman delivered the presidential address. Dr Abhinav and Dr Chintan Chandrachud, grandsons of late Justice Chandrachud, contributed touching personal memoirs.

Of course, the occasion did not warrant any reference to the apex court formally overruling Shiv Kant Shukla as “seriously flawed” (as Justice Dhananjaya Chandrachud wrote on August 25, 2017 for himself and Chief Justice JS Khehar and Justices RK Agrawal and S Abdul Nazeer). Not merely are “life and personal liberty inalienable to human existence”, but when “histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been”. Justice Nariman concurred, adding that further “developments” have also “made it clear that the majority judgments are no longer good law and that Khanna, J.’s dissent is the correct version of the law.” And Justice Sanjay Kishan Kaul termed the judgment as “an aberration in the constitutional jurisprudence of our country” which should be “buried ten fathoms deep, with no chance of resurrection”. Justice Chandrachud would have agreed, as he had in the post-emergency period apologised for the judicial verdict endorsing the suspension of the habeas corpus.

But Justice Nariman was quite right, at the Pune webinar, to draw our attention  to the fact that he soon emerged in Indira Nehru Gandhi v. Raj Narain (decided on November 7, 1975) as an ardent votary of the basic structure and essential features doctrine. He rightly emphasised that despite his dissent in Kesavananda, the learned Justice conducted himself as a disciplined soldier of constitutionalism and held only a portion of the 39th Amendment as constitutionally invalid. August 10, 1975, was the date of the retrospective amendment to electoral laws, which he (and his senior brethren—Justices AN Ray, HR Khanna, KK Mathew, MH Beg) had to wrestle with. The Amendment was both sinister and benign; if it sought totally to oust judicial review for the election of the prime minister, it also sought to protect additional 127 legislations by placing these in the 9th Schedule.

It enunciated that the laws made by Parliament prior to that date ceased to apply to election petitions and all matters related to the 1971 parliamentary election of Indira Gandhi. A retrospective amendment passed judicial muster; but a total ouster of judicial review was unacceptable to the Court, even in days of the Emergency. As Justice Y Chandrachud said, Parliament has unacceptably “withdrawn the application of all laws whatsoever to the disputed election and has taken upon itself to decide that the election is valid”. In his resounding words, “whatever pleases the emperor has the force of law”, is “not an article of democratic faith. The basis of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the government will be discharged, and the power of the State shall be used”. Further, the basic function of Parliament is to legislate, not to adjudicate “for which it lacks the expertise and the apparatus.”

He did not “put a seal of approval on the immunity conferred on any election” and found it “hard to generalize from a single instance that such an isolated act of immunity has destroyed or threatens to destroy the democratic framework of our government”. True, one “swallow does not make a summer”, and that its “twittering cry is undoubtedly a harbinger of summer”, but to  maintain  that “the summer of a totalitarian rule is knocking at the threshold” is “an unduly alarmist view of the political scene”. But is it also a “real danger… of the alarmist’s own making”? Why is it that the Court did not see other sparrows already heralding the summer—the declaration of an internal emergency, rushing to detain almost all parliamentary opposition leaders, and the bulk of cadres in preventive custody, retrospective amendment to electoral laws, the imposition of censorship and criminalisation of all dissent? The question, always and everywhere, is: How many sparrows make a summer?

However, the egalitarian ethos as a core of the basic structure throbs in Justice YV Chandrachud’s opinion. If “there be any unamendable features of the Constitution” which “form part of the basic structure of the Constitution”, it comprises of four self-evident  truths: “(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion and that (iv) the nation shall be governed by a Government of laws, not of men.” These, he said, “are the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution”. The pillars remain a key to understanding his subsequent decisions on amendments that promised greater social justice to the constitutional have-nots.

The tumultuous Chandrachud years of the Supreme Court need urgent revisitation. He was a part of Kesavananda, helped navigate it through the period of harsh constitutional majoritarianism (where the sceptre of closing the doors of the Supreme Court was an imminent possibility), made the apex judicial process more responsive and accountable to people and presided over a brilliant constellation of co-equals.

This Court was severely internally divided and some unfair media practices presented it as a “civil war” between the Congress and Janata Justices and mired in internal tussles between India’s two most distinguished Justices—Justice Chandrachud and Justice Bhagwati, so much so as to  unfairly label Justices into “rival” camps. Media hype aside, these years inaugurated many innovations that we now take for granted—the device of epistolary social action litigation, the power to do “complete justice”,  new forms of partnerships among the communities of learned professions and the judiciary and robustness of free speech and social dissent specially from the easy-minded indictment of scandalising the Court.

The deeper question concerns the nature and limits to judicial populism. Wiping “every tear from every eye” (as the immortal Mohandas Gandhi said of the aims of Swaraj, and whom Justice Krishna Iyer juridicalised), became the judicial mission. Was this best done by developing new forms of justice dispensation by the eFour Musketeers, (as I fondly called Justices Iyer, Bhagwati, O Chinnapa Reddy and D A Desai)? And how was the distinction to be made as some Justices did in Raj Narain) between the “real will” of the people and their official will, expressed though electoral verdicts and representative institutions? How about the contrapuntal relation between “legal” and “political” sovereignty? What juridical sense are we to make of strong judicial review as a way of articulating this “real will.”?

These incredibly rich questions recur, in different forms, in each generation; the Chandrachud-Bhagwati endeavours (as I have often said) transformed the Supreme Court of India into a Supreme Court for all Indians. Disagreements on individual decisions apart (and I had several), the Chandrachud years bequest us with a larger and complicated constitutional itinerary – a  journey which demands a fuller revisiting if only to advance the understanding of judicial labours as incremental  democratic investments.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer