ANS - 2

 INTRODUCTION

The stated text is in reference to the rule of law as explained by A.V. Dicey in his book
“Introduction to the Law of the Constitution,1885”. But here if we first look somewhat
further back in past, we get to read about Sir Edward Coke who propounded the concept of
the Rule of Law. It was Sir Coke who first condemned the concept of king being the
representative of God and claimed that he should also be brought under the ambit of law. It
was only later that this concept was completely developed further by A.V. Dicey. He through
his concept claimed that no individual should be made to suffer lawfully except in the case of
distinct breach of law. He also claimed that law is above all and no individual in an exception
to it.

In the given text also Dicey talks about the supremacy of law over everybody. Be it anybody
straight form the Prime Minister of our country to the constable, everybody has to face
repercussions of his or her actions not done lawfully without any justification. They are to
face legal scrutiny for actions done in excess of their legal capacity. In latter paragraphs here,
we will discuss the given text in context of judicial and quasi-judicial immunity.

 IMMUNITY/PROTECTION TO JUDGES

It is generally scene that every individual has a capacity as well as liability to sue somebody
as in case of tort. But to this concept there are some deviations or exceptions when some
particular people of position or authority are concerned. These deviations or exceptions are
what we call as immunity.

 IMMUNITY TO THE STATE [Does Judiciary Come Under “State”?]

This immunity to the state is referred as the Act of State. It is described as any act done in
exercise of sovereign power in relation to another State. These actions cannot be questioned
or challenged.
But then the question here would be that do judicial actions come under the Act of State.
Article 12 of Constitution does not has any specific mention of Judiciary as inclusive of State.
The answer to this is in negation as we can see in the case of Riju Prasad Sarmah v. State of
Assam1. In this case the petitioner claimed that judiciary is included under the term State and
to this the Court replied that when the Judiciary is acting in judicial capacity, it cannot be
referred to as State.

Then in the case of Naresh Shridhar Mirajkar v. State of Maharashtra 2, J. Hidayatullah

gave his dissenting opinion stating that the term ‘State” must be inclusive of “Courts”
otherwise the courts would get a free hand and might violate fundamental rights of the
citizens.

Two very important case laws that must be mentioned here are Budhan Choudhary v

State of Bihar3 and A. R. Antulay v. R.S. Nayak4. Apex Court through these cases
opined that Judiciary is to be regarded as State for the purport of constitutional limitations on
power.

 IMMUNITY TO THE JUDICIARY

In every litigation there is bound to be two parties, one that wins the case and the second on is
the losing party. Also in every judgement, there is bound to be a party who is not satisfied
with the judgement and hence would want to just challenge the ethics of the judge by putting
the blame of loss on his shoulder. The necessity of providing immunity to judges comes from
this problem. If we let this blame-game continue it will totally jeopardise the whole
functioning of the Judiciary. The purpose of judicial immunity is to establish some sort of
judicial independence.

Judicial Officer Protection Act of 1850

Now let’s look at the inception of this concept of judicial immunity in India. For the first time
in India, judicial protection against civil prosecutions was given in Judicial Officer
Protection Act of 1850 (Act 1850). A judge is protected even if he acts in excess of his
jurisdiction but it should be established that his act was totally bona fide and he honestly
beleved that he had the requisite jurisdiction. Section 1 of this Act states that:
1
2015 (7) SCALE 602, 61.
2
AIR (1967) SC 841.
3
(1955) 1 SCR 1045.
4
(1988) 2 SCC 602.
“Non-liability for the suit of officers who are acting judicially, for official acts that are done
in good faith, and also of the officers executing warrants and orders. No Magistrate, Judge,
Justice of the Peace, Collector or any 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
particular 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 judge is protected under Section 77 of the IPC, it reads as under:

“Nothing is an offence which is done by a Judge when acting judicially in the exercise of any
power which is, or which in good faith he believes to be, given to him by law.”

The key to this aspect of immunities is to assure safety to judicial officers to administer the
law in the way the see fit without any fear. According to Halsbury, the key aspect of this
privilege is not to guard the malicious judges but to protect the public from the danger to
which the administration of justice would be exposed if the persons concerned were subject
to malice. This may create a havoc among the general public. Now here we shall discuss
some of the relevant case laws regarding protection of judges.

The Apex Court in Anwar Hussain vs. Ajay Kumar Mukherji and Ors 5. Was of the opinion
that the arrest order as well as detention of the plaintiff was not in bonafide belief. It was
found that the SDM had acted carelessly and also with malicious intent. The Court then
further ordered for the payment of damages worth Rs. 5000 to be paid to the plaintiff.

In a case of State of UP vs. Tulsi Ram and Ors.6 the Allahabad High Court ordered against a
Magistrate who erroneously signed the arrest warrant against a person who was earlier
acquitted by the sessions judge in a civil suit. High Court ruled that the judge’s recklessness
was not protected under Act 1850 and was held liable for the payment of damages worth Rs.
500.

5
AIR (1965) SC 1651.
6
AIR (1971) ALL 162.
In case of Shambhu vs. T. S. Krishna Swamy7, Madras High Court ruled that the judge’s
remarks made during the transfer application were defamatory. The magistrate while replying
to the appeal called the counsel a Goonda or Rowdy and gambler. This was found by the
Supreme Court to be defamatory and it had no nexus with the judicial duty.

In Sailajanand Pandey vs. Suresh Chandra Gupta 8, the Patna High Court held that a
magistrate who orders arrest of a person with mala fide intentions and acting outside of his
jurisdiction is not protected under the Act 1850.

Also in the case of Narasinha vs. Imam9, Court held that if a person is acting under a valid
authority, it is an acceptable defence but this defence ceases to exist when it is found that the
person was acting with mala fide intent.

JUDGE (PROTECTION) ACT, 1985

Parliament passed another act increasing the protection of the judges and providing them
even more immunity. This act has some important provision, Section 3 of this act states that

(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.”
Section 4 of the above act states, “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.”
This act however appears to be guarding the judges from all directions but there is more to it
than meets to the eye. On a deeper understanding this act makes a judge more liable for

7
AIR (1983) 64. 
8
AIR (1969) Pat. 194.
9
(1903) 5 Bom. L.R. 667.
criminal, civil and disciplinary actions. After the passing of this act, role of ‘sanctions’
become important as to file for a criminal or civil action against a judge sanction is a
necessity.
In a relevant judgement of Veeraswamy v. Union of India10, the Apex Court held that when a
sitting judge is to be prosecuted a prior a sanction is to be obtained from the President of
India who will then first consult the CJI. Here it is to be noted that the opinion of the CJI will
be binding and he or she has the last say in it.

HIGHER JUDICIARY

The higher judiciary in India is governed by Constitution of India. Article 124(4) and Article
218 specify that the judges of the Supreme Court and of the High Courts, except by order of
the President, shall not be excluded from office. This shall be adopted after the address of
each house of parliament, approved by a majority of the total members of that house and by a
majority of not less than two-thirds of the members of that house present and voting on the
ground that there has been proof of wrongdoing or incapacity. (5) By statute, Parliament can
govern the procedure for the submission of an address and for the investigation and proof of a
judge's misconduct or incapacity. As a consequence of that clause, the Judges (Inquiry) Act,
1968, was passed by Parliament to establish procedural mobility.

In the case of Ravi Chandran Ayyar vs. Justice M. Bhattacharjee 11, the Aoex Court held that
Article 124(4) and Article 218 deal with the expulsion of judges for incompetence or
incapacity that has been confirmed. It also held that, according to Article 121, the judge's
actions could not be debated in parliament. Discussion of the judge's actions or any
determination or conclusion of its merit is not permitted anywhere, except during an inquiry
by an investigation committee appointed for the purpose under the Act.

IMMUNITY TO THE QUASI-JUDICIAL AUTHORITY

Quasi-judicial-it implies that the judgments of such an authority usually amount to quasi-
judicial decisions by an authority which is forced to act judicially either by an explicit clause
or its actions or by a significant consequence of a bill or an act. Quasi-judicial is also
regarded as a non-judicial agency capable of interpreting law. It is a body or agency which
has powers and procedures which are identical to those of a court of law or a magistrate and

10
1991 (3) SCC 655.
11
1995 (5) SCC 457.
which is obliged to assess the facts and draw conclusions from them in order to create the
basis of an official action. These acts are either a remedy for a circumstance or the
application of legal penalties and can affect the legal rights, duties or obligations of the
action.

Some quasi-judicial or integrity-branch or supervisory officials, such as members of electoral

commissions, ombudsmen, auditors and human rights commissioners, are also subject to
many of the constitutional provisions applicable to judges. These institutions are subject to
the same standards of independence from political manipulation, freedom from excessive
control and political impartiality, combined with a need for legitimacy and overall
transparency. Hence the quasi-judicial officials have their privileges resembling to the Courts
and Judges.

Some relevant case laws:

The US Supreme Court in its judgement of Butz v. Economou12 held that a person while
performing any of the judicial actions attains absolute immunity from any civil or criminal
liability.

In defamation proceedings, however, it has been held that the preservation of utter privilege
relates to terms used by officers of tribunals who act in an analogous way to the courts and
this was held in an English case of Co-partnership Farms V. Harvey Smith13.

To the contrary of the above judgement the English Court itself in the cases of Lilley v.
Roney14about a complaint to the disciplinary committee of the Law Society was held to be
completely privileged and, presumably, any comments made in the hearings by that
committee would have been entirely privileged. In the second case Partridge v. General
Council15, it was held that the duties of the General Council in relation to orders to delete the
name of a dentist from the registry were judicial functions and that they were not liable for
tort in the absence of malice, even if their order was erroneous.

 CONCLUSION

12
438 U.S. 478, 512-16 (1978).
13
[1918] 2 K.B. 405.
14
(18!12) 61 L.J.Q.B. 727.
15
(1890) 25 Q.B.D. 90.
After referring to such eminent case laws and statutes, I would conclude this
topic by opining that the immunities, the protections and the privileges that the
judicial and quasi-judicial are authorities are bestowed with at first seem to give
blanket-protection to them but through a deeper and wider understanding we
can very establish that through various checks and balances the liabilities of
these authorities can also be ascertained. We can also infer that the Dicey’s
principle of supremacy of law and keeping no authority above law is still
respected to the very last extent of it in our country.