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Judicial Immunity: An analysis of English common law and Indian legislations

The English case of Entick v. Carrington having laid the common law principle that the Government being subordinate to law, officials that act in their capacity do not have the authority to use the powers unless the authority is derived from a rule of law[1] and thus as also propounded by Dicey, all public officials bare the liability for acts which do not have legal justification. [2] The doctrine in turn also differentiates between private and public law.[3] Thus, the English law prohibits any interference with personal liberty of the citizens except for as required by law.[4]

However, based on the English principle that “a king can do no wrong” the theory of sovereign power i.e. the immunity is conferred on the state officials when they exercise sovereign functions ( confined by the Court to mean traditionally sovereign functions[5] such as enacting laws, maintaining social order, etc.) [6] Further, mere discharge of statutory functions are not enough and it has to be proved that the act fell under this scope of traditionally sovereign function.[7]

Thus, after this case of Kasturi Lal, the SC has time and again narrowed the scope of the doctrine to provide justice. Thus, we shall analyse the immunity provided to the judicial/quasi-judicial bodies from a common law as well as Indian perspective.

Judicial/Quasi-judicial body:
Judicial bodies are aimed at providing justice and are based on Common law principles. They can create new laws by precedents and need to work adhering to strict rules of evidence ,etc. The Quasi judicial bodies although having the power to adjudicate upon issues, this power is limited to the specific field (eg. Financial markets) for which the body is set. Examples of quasi-judicial bodies in India are the National Human rights Commission, Income tax appellate tribunal, Banking ombudsman, etc. [8]

Immunity under torts to Judges:
English Law:
In Anderson v. Gorrie[9], the question that came before Lord Esher was that whether a cause of action against a judge of the Court of Record can arise if he has acted within his jurisdiction in a malicious way or against the principle of good faith. It was held that even if the act done with the wrong intent and in a way that was not proper in disseminating the duties of his office, no cause of action would arise. Thus, doctrine laid has also seen application in not only superior but also inferior courts like one of a Coroner[10] or Court martial[11].

Logic/ Benefits behind granting immunity to judges:
Judges in any court of law, while doing their duty, need to be given independence and freedom for the same by conferring protection upon them under law so that they can fulfil it without any fear. This cannot be said to be favouring malicious judges, but rather the public at large because their interest itself lies in the judges fulfilling their duties with full liberty and without any fear of consequences.

This could not be possible if he is kept in constant fear of being prosecuted against because of the judgement he delivers or if it has been constantly contested before jury’s that the judge did not have any jurisdiction over the matter which he decided.[12] This immunity granted to them is thus for securing the independence of the judges and for saving them from false actions and thus in the better interest of the public.[13] If a judge is free from some apprehensions, he may exercise his thoughts independently.

Most judges following the proper code, it is probably 1 out of a thousand judges who acts with malice so as to injure a party. Thus, it is always better to not provide a remedy to the one malicious case rather then flooding the gates of the rest 999 appropriate judges with false allegations and thus vexatious litigations.[14]

Judges when not liable to immunity:
  1. Act outside jurisdiction: If in case the judge went outside his jurisdiction in committing an act, it needs to be proved that he has done the same with a good intention and he had reasonable logic behind perceiving the act to be under his jurisdiction.[15
  2. Act of non-judicial nature: Even if the person committing the act is a judge, if the act committed is a non-judicial one, then he cannot be conferred upon immunity.[16]
  3. Act done in bad faith:
    The ground rule is that if a judge of maybe a Superior Court or an inferior one, acts outside his jurisdiction in bad faith i.e. he knows that the act which he is going to commit falls outside his jurisdiction, yet he does so, he is liable for damages.[17]

When judges liable for immunity?
  1. Act done in good faith:
    As has been laid that if a judge of a superior Court commits an act in good faith and honestly believing that he has jurisdiction over the act, he is entitled to immunity from being sued for damages, the doctrine being also later applied to inferior Courts.[18] However, magistrates being excluded from this rule, they could be liable for unlawful arrest/imprisonment or trespass to goods.[19]
     
  2. Error of judgement:
    If in any case, the judge commits a mistake with regards to either the law or facts important to deciding his jurisdiction over the case or he makes a mistake in interpreting the law or passing an order of conviction without evidence, he is not said to act out of his jurisdiction.[20]

If a wrong judgement has been given and a writ of certiorari has been issued by the higher Court, it does not result in a cause of action to file a suit for damages and cannot be considered as an act done in excess of jurisdiction.[21] This has been seen in the case explained below.

In the case of McC v. Mullan, whereby a magistrate without informing a minor that he could avail of the legal aid services had ordered a custodial sentence, the norm that judges of High court could be conferred immunity even though they had acted with malice was reiterated. Also, magistrates being excluded from this rule, they could be liable for unlawful arrest/imprisonment or trespass to goods.

However, they were immune if they acted within their jurisdiction. Further, in the case it was held that the magistrates would be considered going out of their jurisdiction if they act in the following cases:
  1. If in case the judge does not have jurisdiction over:
    1. The person himself
    2. The place of committing the act
    3. The type of offence i.e. the subject matter
  2. When the case is within his jurisdiction, then, if in case he makes a gross mistake or errs away from the clearly regular procedure. An example of this is if in case he does not allow the defendant to produce evidence.
  3. If in case he passes sentence order where there is no legal justification regarding the same. An example to this is that if a person convicted of an offence punishable via a fine is given a sentence which may according to law be given only if the fine is not paid. Another example is when a young person is put in detention without informing about his right to avail of legal aid services is against the legal requirement to do so.

One of the important cases laying the propositions mentioned above is Sirros v. Moore[22] and is explained below.
Facts: The plaintiff who went to the UK was levied a fine and was needed to be deported on the grounds of breach of Aliens Order 1953. The deciding judge has said that he should not be detained until the Home Secretary had decided on his order of deportation. The plaintiff appealed against this decision to the Crown Court.

Therein, the circuit judge having said that he did not have any jurisdiction over the case, however, the plaintiff not being granted bail and being detained after the appeal was dismissed. The divisional court later granted habeas corpus and the plaintiff seeked to sue the circuit judge who ordered detention and the police officers who caught and arrested him.

Issue: If judges act by mistake and police officers follow their orders, are they immune?
Held: The plaintiff was not supposed to be ordered to be detained by the Judge. However, the act was such that the judge carried out in his judicial capability and with good faith and the police officer followed him, thus all of them being immune from any liability.

Position after the Act of 1990:
Section 108(2) of the Courts and Legal Service Act, 1990 provides for judicial immunity to the magistrates for acts done within huis jurisdiction and in his official duty. While, Section 108(3) providing immunity for any act done by the judge outside his jurisdiction, for any action to arise for damages or otherwise, “ bad faith” on the part of the magistrate needs to be proved. [23]

Quasi-judicial bodies:
  1. Arbitrators
    Arbitrators are not liable in any suit to anything more than judges[24].Similar to judges, if arbitrators act honestly and make mistakes or are negligent in fulfilling their duties, they may not be liable for any suit. However, corrupt arbitrators maybe liable and not receive immunity.[25]
     
  2. Quasi-arbitrators
    Immunity is also conferred upon quasi-arbitrators who work not according to the arbitration act but rather on the basis of the agreement between the parties that the person’s decision will be binding on them.[26]
     
  3. Officers exercising judicial orders:
    If in case an officer is carrying out what is required under a warrant/order by a court which itself is outside its jurisdictional power/authority and he does not know about the same, he receives immunity.[27]However, as held in Hoye v. Bush[28], if a person whose name is not explicitly stated in the warrant or similarly goods for that matter are seized by mistake by the officer, than he may be held liable despite it being bona fide.


Indian law:
  1. The Judicial Officers Protection Act, 1850:
    Under the Judicial Officers Protection Act, 1850, certain persons acting in judicial capacity are conferred upon immunity against any suit filed challenging an act done by him in while fulfilling his duty even if it fell outside his jurisdiction, if he had done so in good faith of having jurisdiction over it.

These persons are:
  1. Judge
  2. Magistrate,
  3. Justice of the Peace,
  4. Collector,
  5. Any person acting judicially

Thus, it also covers the officers that are executing warrants that have been issued by the judges out of their jurisdiction, however, he would have to execute it in the same way like when it was passed when the judge had jurisdiction. [29] This immunity is available to the above mentioned people is available to people when the action is committed when disseminating judicial functions only. [30] Thus, it cannot be granted for ministerial acts.[31]

The 1850 Act as applicable to various propositions was examined by the Supreme Court of India in the case of Anwar Hussain v. Ajay Kumar as follows:
When granted immunity:
  1. Despite the Judicial officer doing an act due to a mistake, in a way straying away from the regular, in an illegal manner or not believing in good faith of him having jurisdiction over the act, he maybe immune if the act done is within his judicial duties and jurisdiction.
  2. If an act goes out of his jurisdiction, however, it being done in good faith, and if he in such good faith believes that he has jurisdiction over the act, than too he maybe immune.
  3. Over acts done by him in his judicial capacity only.

Further in the case, “ jurisdiction” was explained by the Court as not meaning power to do the act/pass the order but the whether the officer had any authority to act in that matter. Also, a proposition covered by the Court was if in case the judicial officer worked under the command of his superiors. In this case, he acted maliciously. However, it being the executive capacity in which he worked and not the judicial capacity, he would in no case be liable for any immunity.

Similarly, other instances that came before the court where it was reconfirmed that immunity may not be granted are as follows:
  1. Reckless acts:
    As has been seen earlier if any judge does an act outside his jurisdiction, he can plead good faith that may confer immunity. However, if he in any case acts recklessly without taking any care, and acts in such a manner that is in contravention to the basic rules laid down or procedure to be followed, then the Court has held that he may not be able to say that it was done in good faith and thus grant him with immunity.[32]
     
  2. Wilful abuse:
    If a judge knowingly and according to his will does an act that may fall outside the scope of his jurisdiction, it has been held by the court to be a valid ground for challenging the Act.[33]
     
  3. Negligent signing of warrant:
    In State v. Tulsiram, it was held that if a person was acquitted and the magistrate actingin a negligent manner signs the warrant of such person, the magistrate is not liable for immunity under the 1850 Act.[34]

People other than Judicial officers receiving immunity under the Act:
Section 1 of the 1850 act renders immunity from Civil proceeding to judges, magistrates, collectors and “other persons acting judicially”. This provision having a wide scope, it covers the Tribunals or authorities on whom judicial power is conferred by law to judge in a dispute that falls under their jurisdiction e.g. Disputes under Cooperative Societies Act are judged by a registrar who falling under the scope of the Act’s application, maybe given such immunity.[35]

The Judges (Protection) Act, 1985:
S.3 of the Act provides civil and criminal immunity to the judge to thus not be sued for any act committed by him when he is in the state of discharging his official/judicial duty. A distinguishing feature that extends the scope of immunity received under the act as compared to that under the previous one is that as mentioned in Section 3, the immunity is also given if the officer is fulfilling his official duty.[36]

The definition of a judge as given under Section 2 includes the following person besides a person officially designated as the same:
  1. An individual who has the power under law, to deliver a definitive (that if is confirmed by another person would be definitive or if does not necessitate appeal) judgement
  2. A body of individuals that are again endowed with the above-mentioned power.

Immunity of Supreme Court and High Courts:
The Supreme Court and the High Courts being Courts of Record, their judges are also given immunity apart from the one given in the above two acts. Thus, even if the order passed by them is clearly wrong and not being able to be supported by the merits of the case, they still receive immunity for such acts done within their judicial capacity and jurisdiction.[37] This has been the proposition laid by the SC in the case of State of Rajasthan v. Prakash Chand.

Immunity from judges being impleaded:
Firstly, coming before the Supreme Court in the Case of Savitri Devi v. Dist. Judge of Gorakhpur, it was held that wile instituting a suit, it was not necessary that a judicial officer be impleaded. Further, they are not to be impleaded as respondents in a Special Leave petition.[38]

In Rahendra Baglari v. The Sub divisional Judicial magistrate, a 2020 case before the Guwahati HC, whereby a judicial magistrate and HC was impleaded in a plea against the order, the Court reiterated the absolute immunity of the Judge under the 1985 act as also its extension to ex-judges.[39]

Conclusion:
Thus, after the 1990 act in England, all judges (SC/HC magistrates) have the same immunity for acts done under their jurisdiction and for acts outside it, bad faith needs to be proven. In India, two such acts conferring immunity on judges, any acts which they have done within their jurisdiction and judicial capacity or in good faith and not being of reckless nature or done in a wilful manner, immunity is provided to them. Further, the definition of persons on whom such immunity is conferred being quite wide, it also covers the quasi-judicial bodies inside its ambit. Further, also many other immunities are provided to HC/SC judges and it has been time and again upheld that judges need not be impleaded in law suits.

References:
  1. Ratanlal and Dheerajlal, Law of Torts, 26th Edition.
  2. R.K. Bangia, The Law of Torts, including motor vehicles act and Consumer protection Act, 22nd Edition, Allahabad Law agency.
End-Notes:
[1] (1765) 19 St Tr 1030
[2] AV Dicey, Law of the Constitution (10th Edition), 1959, p193
[3] Alder, Constitutional and Administrative Law, 9th edition (2013), p.84
[4] Eshugbay Eleko v. Officer Administering, Gov of Nigeria, 1931 AC (PC) 662.
[5] Shyamsunder v. State of Rajasthan, AIR 1974 SC 890.
[6] The Indian Insurance Companies Association Pool v. Radhabai Babulal, 1976 ACJ 362
[7] Kasturilal Jain v. State of Uttar Pradesh, 1965 AIR 1039.
[8] Constitution, statutory and Quasi-judicial bodies, BYJUS, https://byjus.com/free-ias-prep/constitutional-statutory-and-quasi-judicial-bodies/
[9] Anderson v. Gorrie , (1895)1QB668.
[10] Garret v, Fernand, (1827) 6B&C611.
[11] Scott v. Stansfield, (1868) 3LREx220.
[12] Scott v. Stansfield, (1868) 3 LR Ex 220, 223.
[13] Fray v. Blackburn, (1863) 3 B & S 576.
[14] McC v. Mullan, (1984) 3 All ER 908(916)
[15] Sirros v. Moore (1975) QB 118.
[16] Sirros v. Moore (1975) QB 118.
[17]McC v. Mullan, (1984) 3 All ER 908(916)
[18] Sirros v. Moore, [1975] QB 118.
[19] McC v. Mullan, (1984) 3AIIER 908(916).
[20] McC v. Mullan, (1984) 3AIIER 908(916).
[21] Mc C. v. Mullan, (1984) 3 All ER (HL) 908, p. 917.
[22] Sirros v Moore: CA 1974,Swarb.co.uk, https://swarb.co.uk/sirros-v-moore-ca-1974/.
[23] Courts and Legal Services Act, 1990, §108, 1990 c.41, Act of Parliament, 1990( UK). https://www.legislation.gov.uk/ukpga/1990/41/section/108/1991-02-01
[24] Morris v. Reynolds, (1704) 2 Ld.Raym. 857.
[25] Wills v. Maccarnick, (1762)2 Wils 148.
[26] Sutcliff v. Thackrah, (1974) AC 727.
[27] Sirros v. Moore, (1975) QB 118
[28] Hoye v. Bush, (1840) 1 M & G 775.
[29] The Judicial Officers Protection Act, 1850, §. 1. Act 35 of 1850, Act of Parliament(India), Also see, Girjashankar v. Gopalji, (1905) 7 Bom LR 951(India).
[30] Venkat v. Armstrong, (1865) 3 BHC (ACJ) 47(India).
[31] Chunder Narain v. Brojo Bullub, (1874) 14 Beng LR 254(India).
[32] Vinayak v. Bai Itcha, (1865) 3 BHC (ACJ) (India).
[33] Amminappa v. Mohammad, (1865)2 MHC 443(India).
[34] State v. Tulsiram, AIR 1971AII162(India).

[35] The Judicial Officers Protection Act, 1850, §. 1. Act 35 of 1850, Act of Parliament(India).
[36] THE JUDGES (PROTECTION) ACT, 1985, §. 3, ACT NO. 59 OF 1985, Act of Parliament(India).
[37] State of Rajasthan v. Praksh Chand, AIR 198 SC 1344(India).
[38] Savitri Devi v. Dist. Judge of Gorakhpur, (1999)2 SCC 577(India).
[39] Rahendra Baglari v. The Sub divisional Judicial magistrate, WP(C) 3057/2020(India).

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