The Statement of Objects and Reasons for introducing the Bill in relation to the 1985 Act which reads :
Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enable Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judges to function if their actions in court are made subject to legal proceedings, either civil or criminal.
The Judges (Protection) Act, 1985
6th September, 1985
An Act for securing additional protection for Judges and others acting judicially and for matters connected therewith.
Be it enacted by Parliament in the Thirty-sixth Year of the Republic of India as follows:-
1. Short title and extent
(1) This Act may be called The Judges (Protection) Act, 1985.
(2) It extends to the whole of India .
In this Act, “Judge” means not only every person who is officially designated as Judge, but also every person-,-
(a) 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; or
(b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a).
3. Additional protection to Judges
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (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-section (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.
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.
1- Section 77 of Indian Penal Code (`IPC’) also provides the following protection to Judges :
“77. Act of Judge when acting judicially : 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.”
It is thus clear that in view of the aforesaid statutory provisions, no Court shall entertain or continue any civil or criminal proceeding against 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.
It is also pertinent to note that Section 197 of Code of Criminal Procedure, 1973 (`Cr.P.C.’) provides that when any person who is or was a Judge or Magistrate, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the appropriate Government i.e. the appointing authority. The appointing authority of a High Court Judge is the President of India.
2- The Act is not basically defective in its application to judiciary. All that is required is to lay down certain guidelines lest the Act may be misused. This Court being the ultimate guardian of rights of people and independence of the judiciary will not deny itself the opportunity to lay down such guidelines. It is accordingly directed that no criminal case case shall be registered under Section 154 of Cr.P.C. against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice of India. If the Chief Justice of India is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. There shall be consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. It is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the government in coming to the right consultation.
In Anil Kumar and others Vs. M.K.Aiyappa and another[(2013)10-SCC-705], the Supreme Court has examined the question of sanction for prosecution of a public servant in the context of provisions of Sections 156(3), 190, 200 and 202 of Cr.P.C. and has held that where jurisdiction is invoked on a complaint filed in terms of Section 156(3) or Section 200 of Cr.P.C., the Magistrate is required to apply his mind and cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The Supreme Court has also held in the said decision that requirement of sanction is a pre- condition for ordering investigation under Section 156(3) of Cr.P.C.
In Hussain Vs. Ajoy Kumar Mukherjee and others(AIR-1965-SC-1651)- the officer was holding two offices – one as an executive officer as a Sub Divisional Officer and other as a judicial officer as a Sub Divisional Magistrate. The officer ordered arrest of the Plaintiff but the proceedings were closed without trial. The Plaintiff sued the officer for damages for false imprisonment. The Supreme Court held that in view of his admission that he had not taken cognizance as a Magistrate of the offence alleged against the Plaintiff before ordering his arrest, and his main defence that he had acted under the direction of his superior executive officer, he must be held to have acted in his executive capacity and not in discharge of his duties as a Magistrate and hence was not entitled to protection under Judicial Officers’ Protection Act, 1850
3- Section 1 of Judicial Officers Protection Act, 1850, which read as under :
“No Judge, Magistrate, Justice of the Peace, Collector or 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 time, in good faith, believed himself to have jurisdiction to do or order the act complained of. “
The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute, it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, Page 896 irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression ‘jurisdiction’ does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter.
The above Section offers protection to two broad categories of acts done or ordered to be done by a judicial officer in his judicial capacity. In the first category fall those acts which are within the limits of his jurisdiction. The second category encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done. The Court held that in case of the acts of the first category committed in the discharge of his judicial duties, the protection afforded by the statute is absolute and no enquiry will be entertained as to whether the act done or ordered to be done was erroneous, or even illegal, or was done or ordered without believing in good faith. However, in case of acts of second category, the protection of the statute will be available if at the time of doing, ordering the act, the judicial officer acting judicially, in good faith believed himself to have jurisdiction to do or order the same. The expression ‘jurisdiction’ in this section has not been used in the limited sense of the term, as connoting the ‘power’ to do or order to do the particular act complained of, but is used in a wide sense as meaning ‘generally the authority of the judicial officer to act in the matters’. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceeding in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous, will still be within his ‘jurisdiction’, and the mere fact that it was erroneous will not put it beyond his ‘jurisdiction’. Error in the exercise of jurisdiction is not to be confused with lack of jurisdiction in entertaining the cause or proceeding. It follows that if the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of this statute, the complainant has to establish that (1) the judicial officer complained against was acting without any jurisdiction whatsoever, and (2) he was acting without good faith in believing himself to have jurisdiction. [Rachapudi Subba Rao v. Advocate General, Andhra Pradesh-AIR 1981 SC 755]
“In the above case(AIR 1981 SC 755), the Subordinate Judge had unquestionably, the jurisdiction to try and decide the suits concerned. It is further not disputed that the findings which the appellant characterises as “wrong”, “malicious” and “dishonest”, are acts done by the Subordinate Judge in the discharge of his judicial duties i.e. within the exercise of his jurisdiction. This being the position, the acts of the Subordinate Judge, done by him in his judicial capacity, on the basis of which the appellant was threatening to bring an action for damages against the Judge, enjoy absolute protection against civil action. Nor would the fact that the appellant had the temerity to ridicule and characterise the findings and decision of the Subordinate Judge as “malicious” “dishonest” and motivated ‘to help the plaintiff in O. S. No. 275/1972’, without stating any particulars or facts on which these scurrilous allegations were founded, give him the locus to bring a civil action for damages against the Subordinate Judge”.
4- In State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, the Apex Court in paras 34 and 25 held as under :
Even otherwise, it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. This immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice. The following passage from Oswalds’s Contempt of Court, 3rd Edn., 1993 (Reprint), in this behalf is apposite:
An action will not lie against a Judge of a Court of Record for a wrongful commitment in the exercise of his judicial duties, any more than for an erroneous judgment(s). But the Divisional Court refused to strike out as disclosing no cause of action a statement of claim in an action for malicious prosecution brought against certain Judges of the Supreme Court of Trinidad for having (as it was alleged) of their own motion, and without any evidence, caused the plaintiff to be prosecuted and committed to prison for an alleged contempt of the Supreme Court in forwarding to the Governor of the Colony for transmission to the Queen-in-Council a petition of appeal complaining of the oppressive conduct of the defendants as Judges(t). At the trial of this case before Lord Coleridge, C.J., the jury found as regards one of the defendants that he had overstrained his judicial powers, and had acted in the administration of justice oppressively and maliciously to the prejudice of the plaintiff and to the perversion of justice. The jury assessed the damages at Pounds 500. Notwithstanding the verdict, Lord Coleridge ordered judgment to be entered for the defendant. This judgment was affirmed by the Court of Appeal. Lord Esher, MR, in delivering the judgment of the Court, said, If any Judge exercises his jurisdiction from malicious motives, he has been guilty of a gross dereliction of duty. And after saying that a Judge was liable to be removed from his office for such conduct, Lord Esher went on to say that the common law clearly was that no action lay against a Judge of a Court of Record for doing something within his jurisdiction but doing it maliciously and contrary to good faith.
5- Section 16(1) of the Contempt of Courts Act, 1971 does not apply to the Judges of the Court of Record but only to the subordinate judiciary.
6- Supreme Court, as the highest court of the land, has not only the right to protect itself from being denigrated, but has also the right, jurisdiction and authority to protect the High Courts and the subordinate courts from being insulted, abused or in any other way denigrated. All the courts, be they the lower or the highest, function for the noble cause of dispensing justice. Since they have to decide litigation between two contesting parties, it is obvious that they have to have full freedom and independence in settling the litigation. The Presiding Officers who run the courts and conduct the proceedings therein have to act fearlessly. Any action on the part of any person or litigant or lawyer, which tends to interfere or obstruct the process of justice, has to be deprecated so that the proceedings may be held in an orderly fashion and everyone who participates in those proceedings may have the feeling of liberty to address the court for proper adjudication of his case.An advocate, as a citizen of this country, has the fundamental right of freedom of expression and speech under Article 19 of the Constitution. This right is also guaranteed to him under the Advocates Act. Apart from that, the legal profession has the inherent right to express itself in the best manner possible in uninhibited language, but the right to express also carries with it the duty to be dignified in the use of expression and to maintain decorum and peace in the court proceedings.
In D.C. Saxena (Dr) v. Hon’ble the Chief Justice of India (1996) 5 SCC 216 this Court observed, inter alia, as under: (SCC pp. 244-45, para 35) Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech…. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection of other fundamental human rights. … Freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. [But] they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial process. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary.
7- We may say that any threat of filing a complaint against the Judge in respect of the judicial proceedings conducted by him in his own court is a positive attempt to interfere with the due course of administration of justice. In order that the Judges may fearlessly and independently act in the discharge of their judicial functions, it is necessary that they should have full liberty to act within the sphere of their activity. If, however, litigants and their counsel start threatening the Judge or launch prosecution against him for what he has honestly and bona fide done in his court, the judicial independence would vanish eroding the very edifice on which the institution of justice stands. It would also be in violation of the statutory protection available to the Judges and Magistrates under the Judicial Officers (Protection) Act as also the Judges (Protection) Act.
8- Surpreme Court in the case of UP Judicial Officers’ Association Vs. Union of India And Others reported in 1994 (4) Supreme Court Cases 687 wherein it was observed as under:
“We have heard Shri RK Jain, learned Senior Counsel for the petitioner and Shri Yogeshwar Prasad, leraned Senior Counsel for the State of Uttar Pradesh. This writ petition raises certain serious and important issues as to the meaning by which it should be ensured and protected. Incidental to the requirement of maintaining such independence of the judiciary, it is of importance that members of the judicial serivces should not work under apprehensions of retaliatory action by the Police and the Executive whatever form such action might assume.