JUDICIAL IMMUNITY/TORTIOUS LIABILITY
JUDICIAL IMMUNITY/TORTIOUS LIABILITY
Mathews J Nedumpara
“Rex non potest peccare”, namely that the king can do no wrong, is a fundamental principle of law. Stated in simple terms, the king is not liable for any action of his agents and servants. This concept, over the centuries, was much diluted with many an exception being accepted. Today, except judicial function, the king, namely, the sovereign, is liable for the tortious action of his delegate/trustee/servant. The sovereign immunity is not absolutely available even against the armed forces.
The concept of absolute immunity which the judges of the superior courts in India enjoy and assert can be traced to the classical Roman law. Roman lawyers said “De fide et officio juridicis non recipitur quaestio, sed de scientia, sive sit error juris sive facti”, namely that about the integrity and honesty of a judge, no question can be asked, but about his/her knowledge and the correctness of his judgment both on facts and law can always be questioned. The reason why the classical Roman lawyers advocated absolute immunity is that otherwise a judge would not be able to discharge his/her functions fearlessly and independently. The question that arose then was, if judges were to enjoy absolute immunity, even when they act dishonestly and maliciously and cause injury to the litigant, what would be the remedy open to such litigant. The remedy offered was “ab alios acta altori quod faceris”, namely, that the almighty would hold the judge who acted unfairly accountable.
When Romans conquered England in 400 BC and remained in power till the Norman invasion, the rudiments of classical Roman law came to take root. However, it was Henry De Bracton, the Chief Judge under Henry II, who was instrumental in building a legal system in England of which the principle source was the classical Roman law.
Tractatus de legibus et consuetudinibus regni Angliae, namely, the treaties of the laws and customs of England, which is nothing but the treaties of Roman law, nay, ecclesiastical laws, is the foundation of common law which we adopted under Article 372 of the Constitution.
The concept of immunity which Parliamentarians, judges, lawyers and even parties and witnesses to a case, enjoy, known by maxim lex citius tolerare vult privatum damnum quam publicum malum, namely that law will tolerate private injury for the larger public good, is no longer absolute or universal.
Even in the 17th century, during the regime of King Henry VII, the great Francis Bacon was convicted for bribery and imprisoned. The sentence included a fine of £40,000 pounds and ban from public office. However, the concept of immunity continued along the lines of classical Roman law, until the Crown proceedings Act of 1947. Under the Act, only the judges of the superior courts, namely, the High Court, Court of appeal and House of Lords enjoyed absolute immunity and the judges of the inferior courts and tribunals are made liable for tort like any other private individual. The colonial legislature, by enacting the Judicial Officers Protection Act of 1850, diluted the concept of absolute immunity. The immunity was limited to the extent where they acted bona fide. It is only profitable to extract Section 1 of the said Act:
“1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.—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; 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 concept of absolute judicial immunity is antithetical to the concept of rule of law, nay, equality before law and equal protection of law, namely, the very core of our constitution. The common people of this country certainly would have expected the legislature, which represents them and is presumed to know the needs of its people and which is mandated to rectify the deficiencies of the existing laws, to undo the mistakes and amend the law. The Parliament, instead of doing that, by enacting Section 3 of the Judges (Protection) Act of 1985 re-established the concept of absolute immunity which is antithetical to the concept of rule of law. Section 3 of the Judges (Protection Act) of 1985 is extracted infra.
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.
Nobody can dispute that that India is the largest and greatest democracy in the world. We have just concluded the General Elections of 2024, once again establishing that the people are supreme and that the Government of the day is accountable to the people and that the people are the real masters. However, the judicial wing of the state, possibly the most powerful wing of the state, is accountable to none. Practically judges at all levels, not merely judges of the superior courts, namely, the High Courts and the Supreme Court, enjoy absolute immunity. We live in an era where, in reality, a petition cannot be filed even against a judge of an inferior court because to do so would be treated as sacrilege. Our democracy, as vibrant as it is, is still far from ideal. No part of our body politics is free from corruption. Nay, the cancer of corruption, today, has spread its tentacles everywhere. The judiciary is no exception. However, there is no law or mechanism for a person aggrieved to seek redressal. Not even in tort, damages. The Judicial Accountability Bill of 2010, has not seen the light of day. The Lokpal Act of 2013 is of no avail.
The Petitioners believe that the verdict of the General Elections of 2024 is an affirmation of the supremacy of the common man over persons in authority and the primacy of the concept of rule of law. The scenario where those who are entrusted of judicial function are accountable to none, the Petitioners believe, has to change. No army can stop an idea whose time has come, said Victor Hugo.
Dharpan
The Petitioner is an MSME entitled to the protection under the MSMED Act and the notification dated 29.5.2015 which received the assent of both houses of the Parliament. The said notification made it mandatory for all banks and financial institutions to constitute committees for the resolution of stress before recovery proceedings can be initiated. The legislative intention behind the said Act and the notification is to promote MSMEs, ensure smooth flow of finance to it and to not allow MSMEs to die if revival is possible. However, not a single bank or financial institution has constituted a committee as mandated by the notification and the benefit was not extended to even a single MSME. The Petitioner and other similarly placed MSMEs, seeking redressal against recovery proceedings in flagrant violation of the notification, approached the Hon’ble High Court of Bombay.
The notification permits an MSME to seek resolution of stress at a stage when it apprehends stress. This is entirely voluntary. It mandates the banks and financial institutions to identify incipient stress and constitute a committee and make an attempt to resolve the stress. This is mandatory. Assuming that no committee was constituted at stages I and II, the Banks and financial institutions are under a duty to constitute a committee when an actual default takes place, namely when the account is not serviced for more than 31 days. The Hon’ble Bombay High Court heard a batch of cases of the MSMEs and reserved the same for orders on 9.8.2023. However, no judgment was pronounced for over 5 months. Certain judgments of the Supreme Court mandate that if no judgment is passed within 6 months, the matter has to be reheard. Apparently to obviate such a scenario, a judgment came to be pronounced on 11.1.2024, which completely at variance with what was argued by the parties. The Petitioners’ contention was that there is a duty cast upon banks and financial institutions to identify incipient stress, constitute a committee for the resolution of stress, and if resolution is not possible, allow recovery steps to be taken. The further case of the Petitioner was that not a single bank/financial institution in this country has constituted a committee and that the notification has been grossly violated with impunity and that the recovery steps initiated against the Petitioner is void ab initio. The categorical case of the Petitioner was that where a bank has failed to identify incipient stress, which is its duty, it becomes all the more mandatory to constitute a committee when the account is in actual default. In other words, there is absolutely no excuse available to the banks and financial institutes for its failure. No bank or financial institution pleaded that it had any difficulty in identifying incipient stress. Nor could they have, because the RBI has specified the signals which indicate incipient stress. No bank or financial institution contradicted the Petitioner’s plea that it is duty bound to classify the account as SMA-I when the account is in default for over 31 days. However, the High Court, for reasons difficult to be fathomed, assumed that it is impossible to identify incipient stress. The Petitioner and other similarly placed MSMEs sought a review of the judgement dated 11.1.2024. But the review was dismissed without going into the merits, raising certain technicalities which have no foundation in law. The Petitioners are remediless because as of now the judges enjoy absolute immunity and no action in tort would lie. A time has, therefore, come to revisit the concept of absolute immunity. Any legal reform should be brought about keeping in mind the words of Lord Bridge “If one judge in a thousand acts dishonestly within his Jurisdiction to the detriment of a party before him it is less harmful to the health of the society to leave that party without a remedy than that nine hundred and ninety nine judges should be harassed by vexatious litigations alleging malice in the exercise of their proper jurisdiction” (Mcc v. Mullan).
The Petitioners, in all humility, believe that there has to be a balancing between the need for protecting judges from vexatious proceedings against them and the need for justice to litigants who are victims of wilful denial of justice.
Having stated in fair detail the legal position on the province of judicial accountability, the Petitioners beg to refer to the specific legal injury which she has suffered at the hands of DRT-I, Mumbai. The Petitioner invoked the jurisdiction of the DRT under Section 17 of the SARFAESI Act being aggrieved by the action of the bank under Sections 13 and 14 of the SARFAESI Act, leading to a warrant at the hands of the Advocate Commissioner to take possession of her residential home. Among other contentions, she had pleaded that the Respondent Bank who had revised her account on 3.1.2020, classified the account as NPA on the very next day, entirely behind her back, even before the first EMI was due. The DRT-I, Mumbai, was not inclined to hear her on the merits of the case, and made it clear that it can protect her from being dispossessed from her home if an amount of Rs. 1 crore as against the loan amount of Rs. 3 crores is paid within 24 hours, which it modified to 50 percent within 24hrs and the balance 50 percent within a period of 4 days. A copy of the said order dated 02.04.2022 is produced as ____.
The Petitioner paid the entire Rs. 1 crore within the time prescribed by Court on the definite understanding that once the amount is paid, she will be protected till the S.A is finally decided. The Petitioner was shocked to receive yet another notice in less than 10 days, namely, notice dated 12.4.2024 stating that the ARC would take forceful possession of her home. The Petitioner was constrained to approach the High Court. The Hon’ble High Court protected her, leaving it for the DRT to decide her fresh application for injunction, as also review. The copy of the order of the High Court is produced as __. The DRT rejected her petition for stay from further recovery till the S.A is finally decided on the ground that she has paid the entire Rs. 1 crore in compliance of the DRT’s order. A copy of the order declining injunction is produced as ___.
The Petitioner has been advised that when a litigant makes a grievance about a judicial order or the conduct of a judicial officer, utmost reticence ought to be observed. There cannot be two opinions about that and the Petitioner refrains from stating anything more than to say that the said order is unjust and that in a constitutional democracy, governed by the concept of rule of law, every power is a trust and those in discharge of power are accountable to the people and cannot be immune from tortious liability. The Petitioner has been advised to make the Learned Presiding Officer of DRT-I, Mumbai, a party to the instant proceedings because to make any allegation against her without her being on the party array will be violative of the fundamental principles of natural justice and fair play.
Prayer
a) Declare that Section 3 of the Judges (Protection) Act of 1985 is unconstitutional and void inasmuch as it affords absolute immunity to judicial officers even where they have acted unfairly and wilfully denied justice;
b) Declare that the concept of absolute judicial immunity is antithetical to the concept of rule of law, nay, equality before law and equal protection of law, and further that immunity is available only where a court or tribunal has acted bona fide, lest a litigant who is a victim of wilful denial of justice will be denied the ordinary remedy available to him in tort.
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