Court, Court of Justice and Judicial Power means




The word “Court” was not defined in the Act and the EXPRESSION “Courts subordinate to the High Courts” would ‘prima facie’ mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.

9. It would be relevant, however, to notice the definitions of “Court” available elsewhere.

10. Coke on Littleton and Shroud defined the word “Court” as the place where justice is judicially administered.

According to Stephen


“In every Court, there must be at least three constituent parts – the actor, rues and judges; the actor or plaintiff, who complains of an inquiry done; the rues, or defendant, who is called upon to make satisfaction for it; and the judge, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.”

12. Section 3, Evidence Act (I of 1872) defines “Court” as including all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. This definition, however, has been held to be not exhaustive but framed only for the purpose of Evidence Act and is not to be extended where such an extension is not warranted.

13. Section 19 and 20, Penal Code (Act 45 of 1860) define the words “Court” and the “Court of Justice” as under: “Section 19. The word ‘Judge’ denotes not only every person who is officially designated as a judge, but also every person – who is empowered by law to give in any legal proceedings, civil or criminal, 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, or

who is one of a body of persons, which body of person in empowered by law to give such a judgment.

Court of Justice

Section 20. The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially.”

14. The pronouncement of a definitive judgment is thus considered the essential ‘sine qua non’ of a Court and unless the until a binding a authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.

15. The Privy Council in the case of – “Shell Co. of Australia vs. Federal Commissioner of Taxation’, 1931 Act 275 (A) thus defined “Judicial Power”:

 What is Judicial power

“Is this right? What is “Judicial power”? Their Lordships are of opinion that one of the best definitions is that given by Griffith C. J. in – ‘Huddart, Parker and Co. vs. Moorehead’, (1909) 8 CLR 330 where he says:

”I am of opinion that the words judicial power’ as used in S. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

Their Lordships further enumerated certain negative propositions in relation to this subject.

“1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision;

2. Nor because it hears witnesses on oath;

3. Nor because two or more contending parties appear before it between whom it has to decide ;

4. Nor because it gives decision which affect the rights of subjects;

5. Nor because there is an appeal to a Court;

6. Nor because it is a body to which a matter is referred by another body.

See ‘Rex vs. Electricity Commissioners’, 1924-1KB 171 (C)”

and observed at page 298:

“An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so-called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of judicial power”.

Bharat Bank Ltd. vs. Employees of Bharat Bank Ltd

16. The same principal was reiterated by this Court in – ‘Bharat Bank Ltd. vs. Employees of Bharat Bank Ltd., (1953) SCR 730, where the test of a judicial tribunal as laid down in a passage from – ‘Cooper vs. Willson’, 1937-2 KB 309 (F), was adopted by this Court:

“A true judicial decision presupposes an existing dispute between two or more parties, and then involve four requisites:-

(1) The presentation (not necessarily orally) of their case by the parties to the dispute;

(2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties of the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;

(3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and

(4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.”

17. ‘Maqbool Hussain’s case (E)’, above referred to, was followed by this Court in – ‘S. A. Venkataraman vs. Union of India’, (1954) SCR 1150, where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement.

18. It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

19. It was, however, urged by Shri Purshottam Tricumdas for the respondent that the word “Court” should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense, including within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and he relied upon a decision of the Court of Appeal in England in – ‘Royal Aquarium and Summer and Winter Garden Society Ltd. vs. Parkinson’, 1892-1 QB 431 (H), and the observations of Fry L. J., therein:

“I do not desire to attempt any definition of a “court”. It is obvious that, according to our law a court may perform various functions. Parliament is a Court. Its duties as a whole are deliberate and legislative: the duties of a part of it only are judicial. It is nevertheless a court. There are many other courts which, though not Courts of Justice, are nevertheless, courts according to our law. There are, for instance, courts of investigation, like the coroner’s court.

In my judgment, therefore, the existence of the immunity claimed does not depend upon the question whether the subject-matter of consideration is a Court of Justice, but whether it is a Court in law. Wherever you find a Court in law, to that the law attaches certain privileges, among which is the immunity in question”.

The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the Country Council in dealing with the applications for licences for music and dancing.

It was contended on behalf of the defendant that he was exerting a judicial function when he spoke the words complained of and therefore was entitled to absolute, immunity in respect of anything he said. The argument that “wherever you find a Court in law, to that the law attaches certain privileges among which is the immunity in question” was used on behalf of the defendant and Fry L. J., dealt with the same as under at page 447.

“It was said that the existence of this immunity is based on considerations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach.

Judicial: fairly and impartially

It seems to me that the sense in which the word “judicial” is used in that argument is this: it is used as MEANING that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court. Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.

It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering question affecting the position of a medical man, and to all arbitrators. Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this? I say not. I say that there is ample protection afforded in such cases by the ordinary law of privilege. I find no necessity or propriety in carrying the doctrine so far as this argument requires.”

20. Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442:

“It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of Courts of Justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.

In case of ‘Dawkins vs. Lord Rokeby’, (I), the doctrine was extended to a military court of inquiry. It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it. This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act. Then can it be said that a meeting of the country council, when engaged in considering applications for licences for music and dancing is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case”.

21. The case of ‘Dawkins vs. Lord Rokeby, (1873) 8 QB 255(I), was a case where immunity was claimed by a witness who had given evidence before a military Court of inquiry. The case went to the House of Lords and the Lord Chancellor, in his speech at page 754, in – ‘Dawking vs. Lord Rokeby’, (1875), 7 HL 744(J), observed:

“Now, my Lords, adopting the EXPRESSIONs of the learned Judges with regard to what I take to be the settle law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceedings who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army.”

22. Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principles of immunity to members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principles of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry. The extension of the immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law.

23. The position is thus summarised in the following passage in Halsbury’s Laws of England, Hailsham Edition, Volume 8, page 525.

“Many bodies are not courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Act to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man.”

29. Our attention was also drawn to another decision of the Nagpur High Court in – ‘M. V. Rajwadke vs. Dr. S. M. Hassan’, AIR 1954 Nag 71. The question which came to be considered by the Court in that case was whether a commission appointed under the Commissions of Inquiry Act, 1952 was a Court within the MEANING of S. 3, Contempt of Contempt of Courts Act, 1952, and, while considering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the provisions of the Public Servants (Inquiries) Act, 1850.

They rightly observed that “the term ‘Court’ has not been defined in the Contempt of Courts Act, 1952. The Act, however, does contemplate a “Court of Justice’ which as defined in S. 20, Penal Code 1860, denotes a judge who is empowered by law to act judicially’. The least that is required of a court is the capacity to deliver a “definitive judgment”, and unless this power vests in a tribunal in any particular case, the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court”, and came to the conclusion that the commission appointed under the Commissions of Inquiry Act, 1952 is not a Court within the MEANING of the Contempt of Courts Act, 1952.

SOURCE: Brajnandan Sinha case  AIR 1956 SC 66 : (1955) 2 SCR 955 : (1956) CriLJ SC 156