This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses immunity granted to judicial and quasi-judicial authorities.

Introduction

“Justice to one is an injustice to another.”

– Anonymous

This quote is apt every time two parties stand against each other in a lawsuit. One of the parties to the suit is always upset with the decision on having lost the case. As a result, the judge hearing such a case becomes the victim and is considered to be pronouncing wrong or improper judgment. Thus, a lot of people file a lawsuit against such a judge and hold him liable. This situation causes chaos and distrust in the judiciary among the people. This, in turn, weakens the judiciary which is an important wing of democracy in a country such as India. The same was even felt by lawmakers in India and abroad and therefore, the concept of immunity was introduced for those authorities who are handed the responsibility of discharging judicial functions.

Origin of the concept of judicial and quasi-judicial immunity

The law of torts originated in the land of England. The law of torts arises from the common law system. This is the reason why the law of torts has been formed majorly from case laws.

It is not hidden that England follows the monarchic system of government. Thus, for long, the monarchic head, i.e. the king or queen, was immune from any liability. That is to say, it was considered that he or she will not do any wrong and thus, their acts could not be criticized. A similar rule applied for the learned men of the king who were also safeguarded from all liabilities in case they set out a wrong judgment.

In legal terms, the foundation of this concept was laid by Sir Edward Coke who stated that the losing party in each case law would feel betrayed and consider that injustice has been done to him. In such a scenario, allegations would be made against the judge who passed the order and such judge might even be sued. Thus, to protect him from disrespect and embarrassment, the concept of judicial immunity was considered a need. However, it must be remembered that immunity will be granted only in cases where the judge has been genuine and followed the principles of natural justice.

Meaning and concept of judicial immunity

The settled proposition in the common law system is that a judge in a court of record cannot be held liable for the judgments he has passed. A judge passing a judgment in good faith with genuine efforts can never be sued. But, it is also important to remember that if he passes such judgment outside his scope of jurisdiction, then he might not be able to seek immunity since he was acting outside the limits of his powers. If immunity is granted in cases where the judge is acting extra-judicially or outside his jurisdiction, he might misuse or abuse the provision which might lead to the passing of erroneous judgments. To exemplify this further, an example of a case can be taken into consideration. Lord Edward Coke in the case of Marshalsea stated “where there is no jurisdiction, there is no judge”. This simply explains how no judicial immunity can be granted when the judge is not even acting in his correct capacity.

Sirros v. Moore, (1975) AC 118

The case relates to Sirros, a Turkish citizen who was to be deported back to his native country since he violated the law relating to entry permits. The judge at the Crown Court ordered him to be detained until final approval. However, the judge had made an honest mistake as the person was not to be detained. Thus, the plaintiff filed a suit against the judge as well as the police officers who detained him. The court upheld the immunity of the judge against the order since he was acting in good faith and passed the order under an honest mistake.

Thus, in cases where the judge makes a mistake and passes an erroneous order or judgment, he may claim immunity from such error.

Floyd v. Barker, (1608) 12 Co. Rep. 23, 24

The case relates to a judge who was charged with conspiracy as he sentenced a person to death for the commission of murder. However, it later turned out that he was acquitted by the court on appeal and held not guilty. Thus, the acquitted person alleged a charge of conspiracy on the judge who sentenced him for death. However, the court held that a judge has absolute immunity and cannot be charged for conspiracy.

In this case, Lord Coke invented the doctrine of judicial immunity as he felt that the losing party would always put charges against the judge, which would cause distrust in the judiciary among the public.

Marshalsea’s Case, (1613) 10 Co. Rep. 68b

The case gave further clarity to the concept of judicial immunity. Sir Edward Coke, previously in the case of Floyd, urged for the concept of absolute judicial immunity. However, till this time, maybe he realized that absolute immunity might pose a threat as judges might misuse this power and pass erroneous judgments. Therefore, in this case, he talked of jurisdictional powers. He stated that “When a Court has jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court no action lies against them. But when the Court has no jurisdiction of the cause, there the whole proceeding is coram non-judice, and actions will lie against them without any regard of the precept or process.”

Bradley v. Fisher, 80 U.S. 335 (1871)

Bradley’s case is among the initial judgments in American law which granted absolute immunity to judges against any judgments they passed. It stated: “Against the consequences of [judges’] erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies, they must, in such cases, resort”. Thus, the U.S. Supreme Court believed that it was alright in case a person did not get justice in any case against a judge. It believed so as it contended that there were enough laws to safeguard their rights under other statutes.

Stump v. Sparkman, 435 U.S. 349 (1978)

Stump v. Sparkman is yet another landmark case of the U.S. Supreme Court. The judge, in this case, approved the mother’s petition for getting her daughter sterilized in the girl’s childhood. When the girl grew old and later got to know about the sterilization approval by the judge, she filed a suit against him. The Court granted immunity to him since he was discharging his judicial function in good faith.

Meaning and concept of quasi-judicial immunity

The term quasi-judicial authority has not been expressly and specifically defined in common law yet many cases have discussed it. An inference that can be drawn from all cases is that those authorities, apart from the regular courts, which perform the judicial function following the law, are quasi-judicial authorities. They have also been granted immunity when discharging any judicial functions.

Partridge v. General Council of Medical Education and Registration, (1890) 25 Q.B.D. 90

The doctrine of immunity to quasi-judicial authority was first recognized in Partridge by Lord Esher. He stated, “If a body has a public duty reposed in it by statute and, to fulfill that duty, it must exercise discretion, then, for immunity, it is a judicial act.”

Thus, even in cases where the concerned authority is not a judge, if he is discharging any judicial function, he will be accorded immunity.

Welbridge Holdings Ltd v. Metropolitan Corporation of Greater Winnipeg, (1972) 22 D.L.R. (3d) 470

In this case, Justice Laskin stated that authority might be given immunity for one of its acts but not for the other. This is possible when the same authority is working in different capacities. He further explained this by stating that a municipality will be given immunity when working as a judicial authority but not when it is working as an executive or operational authority.

Tampion v. Anderson, [1973] V.R. 321

In this Australian case, the Supreme Court of Victoria stated that quasi-judicial authorities will be accorded the same status as that of a judge in a court when he is discharging his judicial functions. Such a judicial function should be empowered to the authority under law or statute.

Immunity to judicial and quasi-judicial authorities in India

The Judges (Protection) Act, 1985 is the consolidating act of the previously formed Judicial Officers’ Protection Act, 1850. The earlier act was formed in the pre-independence era by the British and gave protection to judges relating to civil suits only. On the contrary, the later act gave immunity in both civil and criminal cases. The jurisprudence relating to immunity in torts has comparatively been different from that of the common law of England. The courts in India have been prudential enough and only give immunity in cases where no liability existed on part of the judge.

Section 3(1) of the Act states, “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.”

Anwar Hussain v. Ajay Kumar Mukherji and Ors. (1965)

In Anwar Hussain, the Supreme Court held the Sub-Divisional Magistrate liable since he was acting maliciously. He ordered for the arrest of the Anwar with mala fide intentions and was thus directed to pay damages. This case shows the intention of the Indian Judiciary to not give judicial immunity absolutely to the judges. That is, where the judge does not act with bona fide intentions, he may not be given any protection.

State of Uttar Pradesh v. Tulsi Ram and Ors. (1971)

In Tulsi Ram, five persons were convicted by the lower court. Two of them were later acquitted in High Court and thus, the court ordered the arrest of the remaining three offenders. However, the judicial magistrate erroneously issued an arrest warrant for all five, including those two who were acquitted, and thus the police arrested them. The two wrongfully arrested persons later filed a case against the police and the judge. The court held that the state was not liable since it was acting under the orders of the court. However, the court upheld the negligence of the judge and stated that the judge was merely performing an executive function and not a judicial function and so cannot be given immunity.

Sailajanand Pandey v. Suresh Chandra Gupta (1969)

Yet again, in this case, the judge was acting with mala fide intentions and ordered the arrest of the plaintiff. Additionally, he made this order illegally and beyond his jurisdiction. Thus, the court held the judge to be guilty of false imprisonment.

Veeraswamy v. Union of India (1991)

Veeraswamy is among the most controversial cases in the history of the Indian Judiciary in this regard. The basic question was whether an FIR could be filed against any judge and this was answered negatively by the court. The court stated that a criminal case can be filed by the government only if the assent of the Chief Justice of India has to be taken “because CJI’s assent was imperative as he was a ‘participatory functionary in the appointment of judges”. Also, it is important to note that the court said that the assent of CJI is not merely a recommendation but an obligation. Moreover, the government needs the permission of CJI again at a later stage to grant sanction for prosecution.

As regards the quasi-judicial authorities in India, they have also been covered under the ambit of The Judges (Protection) Act, 1985. This can be validated by Section 2(a) of the Act which includes every person, “who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive”.

It is clear from the above clause that authorities such as tribunals and boards which have been empowered by some law or statute can also be protected under this Act.

Critical analysis

The proposition of law relating to immunity differs quite a bit in English common law and Indian law. A lot of English cases granted immunity to judges where they were negligent in their actions. On the contrary, the Indian judiciary does not accord immunity to a negligent judge acting with even bona fide intentions. This, however, seems to be more logical since a judgment might restrict the movement of a person for any reasonable cause as happened in many of the above-mentioned cases. Therefore, a judge should be made liable for his actions if he acts negligently or without following the principles of natural justice.

As regards the certainty of liability of judicial and quasi-judicial authorities in India, the same depends on the facts of each case and no strait-jacket rule can be applied. However, it can surely be ascertained that the liability will not be given to judges in the following cases:

1.   Where the judge acts illegally or beyond his jurisdiction.
2.   Where the judge acts with mala fide intentions.
3.   Where the judge acts negligently.

Specifically, in criminal cases, an action can be taken only after the consultation of the Chief Justice of India.

Conclusion

Immunity to judicial and quasi-judicial authorities is important to save such authorities from getting alleged by people against whom a judicial pronouncement has been made. Lord Coke can be credited for inventing this doctrine which has been of immense contribution to the judiciary. However, absolute immunity has not been granted to prevent abuse of such benefitting law. With the evolution of time, the laws have been put to scrutiny and been more refined than previously.

In India, the Judges (Protection) Act, 1985 provides immunities to authorities that are discharging judicial functions. It covers both judicial and quasi-judicial authorities. This is important since there are many other authorities such as commissions, tribunals, boards, etc. which are entrusted under different statutes to discharge judicial functions.

In the Indian context, the benefit of immunity is given with much prudence and care. The judges, who are acting with mala fide intentions or negligently or beyond their jurisdiction, are not given this blanket protection, rather they are held liable for their actions.

To conclude, it can be inferred that immunity to authorities performing judicial functions is a good step that can help them to freely give a just judgment without any fear. However, it must also be remembered that such a judgment should be made with bona fide intentions and in accordance with the provisions of the law. 

References

• https://www.thehindu.com/news/national/can-an-fir-be-filed-against-a-sitting-judge/article20237853.ece
• https://heinonline.org/HOL/LandingPagehandle=hein.journals/mulr13&div=47&id=&page=

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