Plea in Bombay HC Challenges Absolute Immunity to Judges

under ‘Judges Protection Act’, even when Justice is Wilfully

Denied

KEY TAKEAWAYS
 The case in reference is Sabina Yusuf Lakdawala v. State of Maharashtra & Ors
(High Court of Judicature at Bombay)
 The matter is still pending in court hence, the ruling in this instance is not yet final.
 Should judges be granted full immunity if justice is purposefully denied?
 The Judges Protection Act, Articles 226 and 227 of the Indian Constitution, Section
197 of the Criminal Procedure Code and Section 77 of Indian Penal Code all play key
roles in cases of judicial immunity.
 To comprehend the idea of judicial immunity with the help of precedent cases such
as Veeraswamy v. Union of India and Stump V. Sparkman which are explained in
brief.
 There are few exceptions to judicial immunity that are discussed.

INRODUCTION
Sabina Lakdawala has filed a suit at the Bombay High Court challenging the judges'
"absolute immunity" from civil and criminal actions, as established by the Judges Protection
Act, 1985. No court can hear civil or criminal actions against a judge for acts or words said
while exercising his duties as a judge according to Section 3 of the Act. A judge on the other
hand, might face civil, criminal, or departmental action from the central or state governments,
the Supreme Court of India, or a High Court. Sabina Lakdawala, the petitioner, is the former
wife of builder Yusuf Lakdawala, who died in jail from a serious illness. She seeks that the
section be struck down or read down such that immunity is restricted to cases where the judge
does not behave maliciously and intentionally deny justice in the writ petition filed under
Articles 226, 227.

BACKGROUND
After the petitioner i.e. Sabina Yusuf Lakdawala’s husband died, she filed a DV complaint
against her in-laws in the 12th Bandra Metropolitan Magistrates court on October 23, 2021.
On October 30, 2021 the case was addressed and ex-parte reliefs were granted. The
Magistrate on the other hand, took Diwali leave on the same day without issuing an order.
She asserted that she had acquired from reputable sources that the Magistrate would postpone
the case. She subsequently went to the Bombay High Court which ordered the Magistrate to
rule on her petition.
Following that, the in-laws were asked to file a counter-affidavit. Despite no arguments being
offered by her in-laws' counsels, she was denied relief, according to her petition. The judge
further requested that the case be adjourned until March 20, 2022, with the hearing being
rescheduled for December 22, 2021.
The petitioner claims that she had filed submissions with the President of India, Vice
President, Chief Justice of India, and others before coming to the High Court. She claimed in
the petition filed through Nedumbara (Petitioner’s Advocate) that the High Court has
supervisory authority over lower courts.
The Magistrate, Department of Law and Justice, Maharashtra Public Service Commissioner,
and the Registrar, High Court are among the respondents to the petition.
This case is currently being benched by Hon’ble Shri Justice S.J. Kathawalla and Hon’ble
Shri Justice Surendra P. Tavade.
Advocates from Petitioner/Plaintiff/Appellant- Mr.Mathew Nedumpara a/w. Ms.Maria
Nedumpara. Advocates for Respondent/Defendant- Mr.Asadali Mazgaonwala i/b. Kartikeya
and Associates

WHAT IS THE PETITIONER CLAIMING?

The petitioner alleges that, notwithstanding the Magistrate of the 12th Court, Bandra's wilful
denial of Justice, she is unable to bring a civil or criminal action because of the Act's total
immunity. In the complainant's Domestic Violence lawsuit against her in-laws, the Magistrate
had denied her ex-parte (on behalf of one side or party only) and interim relief. Section 3 of
the Judges Protection Act, according to the plea, makes section 197 of the CrPC (sanction to
prosecute) obsolete.
By ruling that courts cannot take account of wrongdoings if the judge or Magistrate was
exercising his official role/duty, it contradicts the impact of statutes that favour judicial
accountability. It emphasises that permitting only the government or higher courts to
intervene deprives citizens of their prized right to seek redress.
According to the plea, the theory of res-judicata (meaning a case that has already been
decided or a matter settled by a decision or judgment) requires a competent court's judgement
to bind both parties, regardless of how flawed it may be. Misconduct, on the other hand, is
taken very seriously in any country that follows common law. “Equality before law and equal
protection of law is the core of our constitution. To vest in the judges and magistrates,
absolute immunity even when they act maliciously and wilfully deny justice on corrupt and
extraneous considerations, is against the very foundation of our constitutional ethos,
equality,” she has argued in her plea.
The petitioner claimed that she was made homeless and at the mercy of others as a result of
the magistrate's deliberate refusal to issue the order and she valued her mental and bodily
suffering at ten crores. It's worth noting that her husband's business empire was worth a
billion dollars.

SECTIONS AND ARTICLES COVERED IN THIS CASE

 1. Judges Protection Act, 1985- An act to provide further protection for judges and
those operating in judicial capacities, as well as topics related thereto. Except for the
state of Jammu & Kashmir, it covers the entirety of India.
In this Act, "Judge" refers to not only those who are officially designated as such, but
also to anyone who is authorised by law to render a precise judgement in any legal
proceeding or a judgement that would be definitive if not appealed or a judgement
that would be conclusive if confirmed by another authority.
2. Section 3 of Judges Protection Act, 1985- No civil or criminal process shall be
brought or continued against any person who is or was a Judge for any act, thing, or
word committed, done, or said by him while acting or pretending to act in the exercise
of his official or judicial duty or function. Nothing in this act limits or restricts the
power of the Central Government, State Governments, the Supreme Court of India,
any High Court, or any other authority to take action against any person who is or was
a Judge under any law currently in force (whether through civil, criminal, or
departmental proceedings or otherwise).
3. Article 226 of Indian Constitution- It enables the high courts to issue instructions,
orders, or writs, including writs in the form of habeas corpus, mandamus, prohibition,
quo warranto, certiorari, or any of them, to any person or authority, including the
government (in proper instances).
4. Article 227 of Indian Constitution- Every High Court has superintendence over all
courts and tribunals within the regions over which it has authority, according to
Article 227 (except a court formed under a law related to armed forces).
5. Section 197 of CrPC- It aims to protect an officer accused of an offence committed
while acting or purporting to act in the discharge of his official duties from undue
harassment by prohibiting the court from taking cognizance of the offence unless the
competent authority has given its prior approval.
6. Section 77 of Indian Penal Code - This section states that 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.

THE CONTROVERSIAL CASE OF VEERASWAMY V. UNION OF INDIA (1991)

In regard of judicial absolute judicial immunity, Veeraswamy is one of the most contentious
issues in Indian legal history. The primary question was whether or not a FIR could be filed
against any judge, and the court said no. The court said that the government can only initiate
a criminal prosecution if the Chief Justice of India agrees, "since the CJI's agreement was
mandatory because he was a 'participatory functionary in the nomination of judges." It's also
worth noting that the court stated that CJI's acquiescence is not only a suggestion, but a
requirement. Furthermore, the government will require the authorization of the CJI to issue
sanction for prosecution at a later point. In India, the quasi-judicial agencies are also covered
under The Judges (Protection) Act, 1985. This is supported by Section 2(a) of the Act, which
defines "every person who is empowered by law to give in any legal proceeding a definitive
judgement, or a judgement which, if not appealed against, would be definitive, or a
judgement which, if confirmed by some other authority, would be definitive" as "every
person who is empowered by law to give in any legal proceeding a definitive judgement, or a
judgement which, if confirmed by some other authority, would be definitive." The
aforementioned section makes it clear that authorities such as tribunals and boards that are
empowered by a law or statute can also be protected under this Act.

THE CASE OF STUMP V. SPARKMAN (1978)

Stump v. Sparkman is a landmark case in the area of judicial immunity. Judge Harold D.
Stump accepted a mother's request for a tubal ligation on her 15-year-old daughter, whom she
said was "slightly handicapped," in 1971. The procedure, the girl was told, was to remove her
appendix. Linda Sparkman, the daughter's married name at the time, found out she had been
sterilised in 1975. She filed a lawsuit against the judge. The judge could not be sued since the
decision was made in the course of his responsibilities, according to the US Supreme Court.
It didn't matter that the judge's ruling was unconstitutional and morally repugnant in this case.

WHY IS IMMUNITY GIVEN TO JUDGES?

Judges must have total and absolute immunity for their judicial tasks in order to be able to
judge freely, independently, and without fear of future prosecution or culpability. Judges
would not be litigating in the first place if they did not have immunity, and would instead
choose another vocation. As a result, judges have been protected for their judicial
responsibilities or acts in every legal system.
Judges in any court of law should be allowed independence and freedom to carry out their
duties by bestowing legal protection on them so that they can do so without fear. This cannot
be claimed to benefit malevolent judges, but rather the general public, because the public's
interest is in judges performing their jobs with complete freedom and without fear of
repercussions. This may not be conceivable if he is continually afraid of being prosecuted
because of the decisions he makes, or if it has been repeatedly argued before juries that the
judge had jurisdiction over the case he decided. This immunity is provided to them in order to
protect the independence of the judges and to protect them from dishonest activities, which is
in the public's best interests. If a judge is free of certain fears, he is free to think freely.
Most judges respect the rules, and it is unlikely that one in a thousand judges acts maliciously
to harm a party. As a result, it is always preferable to refuse to give a remedy in the one
malevolent instance than to flood the gates of the remaining 999 suitable judges with false
charges and hence vexatious litigations.

EXCEPTIONS TO JUDICIAL IMMUNITY

The following are examples of situations where the court confirmed that immunity could not
be granted:
i. Acts of recklessness: As previously stated, if a judge acts in good faith outside of his
authority, he may be granted immunity. However, if he acts carelessly and without
care, and in a manner that is contrary to the main norms given out or process to be
followed, the Court has concluded that he will not be able to claim that he acted in
good faith, and so will not be granted immunity. A three-judge bench comprising
 Justices R.M. Lodha, Madan B. Lokur, and Kurian Joseph settled the law in Pune
Municipal Corporation vs Harakchand Misirimal Solanki, holding that compensation
in lieu of cost of land, unless paid into the account of the land owner, could not be
effectively taken as payment made to him. The Supreme Court's differing opinions on
whether procedures under Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 – often
known as the new land acquisition Act – have lapsed are at the centre of the debate.
Two Supreme Court benches resolved to urge Former Chief Justice of India Dipak
Misra to form a "appropriate" panel to consider whether a three-judge bench can
declare a judgement rendered by another bench of same strength "per incuriam." "Per
Incuriam" refers to a decision made without taking into account all relevant
information or exercising reasonable care. To put it another way, it's a careless
decision.
ii. Wilful abuse: A solid foundation for challenging the Act has been established by the
court if a judge deliberately and according to his will conducts an act that may fall
beyond the extent of his authority. In case of Commonwealth v. Joan Orie Melvin a
grand jury accused former Pennsylvania Top Court Justice Joan Orie Melvin for using
her superior court staff during her campaigns for the supreme court in 2003 and 2009.
She was also accused of being personally involved in the use of her sister's campaign
workers, former state Senator Jane Orie, to assist her own campaigns. Orie Melvin
was convicted of felony theft of services, conspiracy to steal services, misdemeanour
misapplication of government property, and conspiracy to tamper with evidence by a
jury in 2013. She wilfully abused her power.
iii. Negligent signing of warrant: In State v. Tulsiram, the court found that if a person is
acquitted and the magistrate signs the person's warrant in a careless way, the
magistrate is not entitled to immunity under the 1850 Act.

ARGUMENTS AGAINST ABSOLUTE IMMUNITY OF JUDGES

1. To hold judges accountable for using excessive force, liability is required. Judges can
currently be given protection under the Judges Protection Act. Everything in excess is
dangerous. As a result, similar legislation should be enacted to balance the power
granted to judges.
2. The current doctrine, as it is now enforced in courts, leads to a lot of wrangling, and it
is sometimes hard for plaintiffs to achieve their burden.
3. Some people feel that allowing personal lawsuits against judges is the only option to
safeguard the public in certain instances.
4. The judicial system permits a tiny percentage of judges to avoid the repercussions of
unlawful and outrageous behaviour by completely shielding them from personal
accountability for their acts. When a judge "beats the system," the public loses
respect, while the victim loses the opportunity to be compensated for the harm caused
by the judicial act.

CONCLUSION
The law pertaining to immunity in English common law and Indian law differs significantly.
In several English instances, judges were awarded immunity when their conduct were
careless. The Indian judiciary, on the other hand, does not grant protection to a careless judge
operating with good intentions. This appears to be more rational, given that a ruling might
restrict a person's mobility for any fair reason, as in many of the circumstances stated above.
As a result, if a judge behaves irresponsibly or in violation of natural justice principles, he
should be held accountable. According to the Constitution, the judiciary is one of the major
foundations of parliamentary democracy. All immunities required to enable judges to act
fearlessly and impartially in the exercise of their judicial duties must be provided. Judges will
find it difficult to operate if their conduct in court are subject to legal action, whether civil or
criminal. In India, the certainty of judicial and quasi-judicial officials' responsibility is
determined by the facts of each case, and no rigid formula may be followed.