Law Commission of India Report No. 104
The Judicial Officers' Protection Act, 1850
Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by K.K. Mathew, Chairman, Law Commission of India, on October 10, 1984.
New Delhi. October 10, 1984.Shri Jagannath Kaushal, Minister of Law, Justice and Company Affairs, New Delhi. My Dear Minister,
I am forwarding herewith the One Hundred and Fourth Report of the Law Commission on "The Judicial Officers' Protection Act, 1850". The subject was taken up by the Law Commission on its own.
The Commission is indebted to Shri P.M. Bakshi, Part-time Member, and Shri A.K. Srinivasamurthy, Member-Secretary, for their valuable assistance in the preparation of the Report.With regards, Yours sincerely, Sd/- K.K. Mathew.
The Judicial Officers' Protection Act, 1850
Introductory1.1. Need for revision of the Act.—Revision of the Judicial Officers' Protection Act, 1850, has been taken up by the Law Commission of its own, as a part of its function of simplifying the law. The manner in which the Act is expressed has become out of date, particularly as a result of subsequent legislative and other developments that have taken place in India. The Act therefore needs revision badly. The Act was passed more than a century ago. Since then, no comprehensive review of its provisions has been undertaken. The points that arise out of the Act are important enough to require serious consideration. 1.2. Principle of the Act.—Stated broadly, the object of the Act is two fold. It seeks to confer protection on persons performing judicial functions, and it is also designed to protect persons executing decrees and orders passed by the judiciary in exercise of its functions. The first seems to be the principal objective of the Act; the second objective, of protecting the executive officers, may be regarded an ancillary to the first. 1.3. The principle and the details.—The Act lays down no new principle. Most common law countries confer substantial protection on their judges, even in respect of acts beyond their jurisdiction, provided such acts be done honestly and on reasonable and probable cause. However, though the principle is not controversial, several matters of detail arise and it is desirable to consider the provisions of the Act at some length. Before discussing the provisions of the Act in detail, it may be convenient to give its history in brief. 1.4. Working paper.—The Law Commission had, for ascertaining opinion on the subject, prepared and circulated1 a Working Paper, inviting comments from interested persons and bodies. The comments received on the Working Paper will be referred to, at the appropriate place.2-3 1. Law Commission of India, Working Paper on the Judicial Officers Protection Act, 1855. 2. Chapter 9, infra. 3. All comments received upto the date of signing this Report have been taken into account.
History2.1. Position of Provincial Magistrates under British statute.—Prior to 1850, in India, there was no comprehensive legislation relating to judicial immunity. A British statute, dealing with a very limited area of the subject, provided as follows1:—
The Present Law3.1. Scope of the Act of 1850.—The Act of 1850 makes more definite provision as to the protection of judges than the earlier law1. In the first place, it covers all judicial officers, by enumerating them specifically. Secondly, it protects the judicial officers from suits, not only for acts done or ordered to be done by them in the discharge of their duties within the limits of their jurisdiction, but also for acts done beyond the limits of their jurisdiction, provided that, in the latter case, the officer, at the time of doing the act or ordering it to be done, in good faith believed himself to have such jurisdiction. Thirdly, the Act also protects persons acting in pursuance of the orders of a judicial officer, if acting in good faith, even if the judicial officer had no jurisdiction to pass the particular order. 1. For the earlier law, see Chapter 2, supra. 3.2. Scheme of the Act and three major heads of study.—The scheme of the Act is simple enough. Because of the legislative practice in those days, the Act does not commence with the usual clause dealing with its short title and territorial extent. The Act consists of only one section, and its structure is not complicated. However, there is a possibility of detailed study in regard to—(i) the persons who receive the protection of the Act1 (ii) the kind of proceedings for which such protection is available,2 and (iii) the extent of the protection so available.3 1. Chapter 5, infra. 2. Chapters 6-7, infra. 3. Chapter 8, infra. 3.3. Section 1.—Section 1 of the Act may be quoted in full :
Short Title and Extent4.1. Short title to be amended.—Coming to the changes needed in the Act, we begin our examination of the Act with the short title "The Judicial Officers Protection Act, 1850". In our opinion, this needs to be revised. The expression "Judicial officers" is not quite appropriate. By a layman, it may be taken as denoting only persons belonging to the lower judicial cadre of the State, but the Act is not confined to them. It extends to all persons who act judicially—broadly speaking, "Judges".1 It would be more appropriate to bring that idea in the forefront. The short title of the Act should therefore be revised as "The Judges Protection Act, 1850". We are separately2 recommending adoption of the definition of "Judge" as given in the Indian Penal Code.3 1. Cf. section 19, Indian Penal Code. 2. Para. 5.2, infra. 3. Section 19, Indian Penal Code. 4.2. Territorial extent.—The next topic to be considered relates to the territorial extent of the Act. At present, there is no provision in the Act defining its territorial extent. It appears that before independence, the Act was in force in all the Provinces of (British) India, except the Scheduled Districts.1 Subsequently, (i.e. after independence), the Act was extended to the merged states2, and Union Territories.3 However, the Act has not so far been extended by parliamentary legislation to the area of Part 'B' States, though, presumably, substantially similar legislation may be in force in most of those areas. 1. Section 3, Laws (Local Extent) Act, 1874 (15 of 1874). 2. Merged States (Laws) Act, 1949 (59 of 1949). 3. Union Territories (Laws) Act, 1950 (30 of 1950). 4.3. Need for change.—There seems no reason why the Act should not be extended to the whole of India except the State of Jammu and Kashmir. We see no constitutional difficulty in doing so. The pith and substance of the Act seems to fall within the subject of "Actionable wrongs", which is specifically included in the Concurrent list in the Constitution.1 Even if the Act is regarded as touching the subject of "administration of Justice", that also is a matter which now falls within the Concurrent List.2 There should, therefore, be no objection to extending the Act to the areas of former Part 'B' States. In such matters, uniformity is desirable and should be sought for, if there is no constitutional difficulty. 1. Constitution, Seventh Schedule, Concurrent List, entry 8. 2. Constitution, Seventh Schedule, Concurrent List, entry 11A. 4.4. Proposal to extend the Act to whole of India.—Accordingly, we propose that the Act should be extended to the whole of India except the State of Jammu and Kashmir.
Persons Entitled to Protection as Judges5.1. Section 1: Persons entitled to protection.—Turning, now, to the actual provisions of the Act, we find that the persons on whom protection is conferred by the Act are enumerated in section 1 as "judge, magistrate, justice of the peace, Collector or other persons acting judicially". Underlying the enumeration of all the persons in the section is the central concept of "acting judicially". We find that the same idea is expressed briefly, but more comprehensively, in section 77 of the Indian Penal Code,1 which confers on judges protection from criminal liability in respect of certain judicial acts. 1. See Appendix 1. 5.2. Definitions of "judge" and "court" of Justice in the Indian Penal Code.—The expression "Judge", and also the connected expression "court of Justice", are appropriately defined in the Indian Penal Code.1 By section 19 of the Penal Code (omitting the illustrations), the word "Judge" has been given the following meaning:
Proceedings for which Protection is Available6.1. Section 1, earlier half, and proviso.—The substantive provision is section 1 (earlier half and the proviso) of the Act under consideration, which deals with the nature of the protection given to the persons concerned, can now be taken up. It appears that it would be an improvement if for that purpose also, the simpler provision in section 77, Indian Penal Code, is adopted.1 Section 77 expresses1 (in much briefer language) all that this part of section 1 of the Act under consideration tries to express. 1. See para. 5.2, supra. 2. See Appendix 1. 6.2. Protection as to acts within and without jurisdiction.—It may be desirable to analyse a few aspects of the Act of 1850 which is under consideration. Under the Act of 1850, the protection applied to acts done within jurisdiction, irrespective of questions of good faith; but the protection does not apply to acts done without jurisdiction, if the act is not done in good faith. This will be apparent from the conditions for claiming the protection, analysed in the next paragraph. The protection afforded to a judicial officer under the Act requires that (i) he was acting judicially, (ii) that he made the order in discharge of his judicial duties, and (iii) that either the action was within the limits of his jurisdiction or (if it was without jurisdiction) that, in good faith, he believed himself to have jurisdiction to do or order the act complained of. This is fairly clear on a reading1 of section 1. 1. See para. 3.3, supra, for the text of section 1. 6.3. Effect of proposed adoption of section 77.—The adoption of section 77, Indian Penal Code, which we have suggested above,1-2 will not make a substantial difference in this regard. But it will certainly state the law in a simpler and neater form. 1. Paras. 5.2 and 6.1, supra. 2. See also para. 3.3, supra. 6.4. Meaning of "judicial".—It may be mentioned that the Act under consideration requires that the act must have been done in discharge of "judicial" duty. Although a large number of rulings on the expression "judicial" exist in this context,1 they are mostly focussed on the facts of each case, and do not necessitate any textual amendment. 1. Iyer Torts, (1975), p. 46, Chapter 2, para. 16. 6.5. Meaning of "jurisdiction.—The expression "jurisdiction" as used in the Act under consideration does not mean the power to do or order the (particular) act impugned, but means generally authority of the judicial officer to act in the matter. 1Where a Sub-divisional Magistrate orders the arrest of a person for the offence of mischief without taking cognizance of the offence, the Sub-divisional Officer is acting in an executive capacity and is liable to pay damages for false imprisonment to the person as arrested. 1. Anowar Hussain v. Ajay Kumar, AIR 1965 SC 1651, approving AIR 1959 Assam 28.
Ministerial Acts7.1. Section 1 and Ministerial Acts.—So far, we have considered that part of section 1 of the Act under discussion which relates to the immunity of judges. The latter part of the section confers protection on an officer of court and "other person" who executes any warrant or order issued by the judge, which that officer or other person would be bound to execute if within the jurisdiction of the person receiving the same. Here also, it appears preferable to adopt the similar language of section 78 of the Indian Penal Code.1 That section is concerned with the protection against criminal liability for ministerial acts done in pursuance of the orders of a judge (as defined in that Code). 1. Appendix 1. 7.2. Possible re-draft of section 1, latter part.—On this basis, the latter Part of section 1 could be revised as under:—
"Good Faith", and other Expressions8.1. Section 1—Good faith.—One important point that must also receive attention in connection with section 1 of the Act is the question whether the belief of the person acting judicially 'in good faith' must be based on reasonable inquiry. In other words, does the expression "good faith" here postulate due care and attention? The point was discussed in detail in a Calcutta case.1 On the facts of the belief was held to be both honest and reasonable. At the same time, it was pointed out that there may be some difficulty as to the exact meaning of the expression "in good faith" as appearing in section 1. A question, it was said, may arise if it was necessary to see whether there existed a reasonable cause for the belief of the Magistrate, or whether it was sufficient if he himself thought that there was sufficient cause.2 1. Rohini Kumar v. Niaz Mohammed, AIR 1944 Cal 4 (10) (Pal, J.). 2. See also Collector of Sea Customs v. Chidambaram, 1876 ILR 1 Mad 89. 8.2. Suggestion to adopt definition of "good faith" in penal Code.—The difficulty pointed out in the Calcutta case mentioned above1 would disappear if the definition of "good faith" as given in the Penal Code2 is adopted for the purpose of the interpretation of the Act under consideration also. Section 52 of the Penal Code reads as under:—
(1) Section 19—'Judge' (defined with reference to 'Court of Justice').1
(2) Section 20—'Court of Justice' (used in the definition of 'Judge').2
(3) Sections 32-33—'act'.3
(4) Section 52—'good faith'.4It would be useful if they are adopted into the Act under consideration. 1. Para. 5.2, supra. 2. Para. 5.3, supra. 3. Para. 8.3, supra. 4. Para. 8.2, supra.
Comments Received on the Working Paper9.1. Comments received on the Working Paper.—In response1 to the Working Paper circulated on the subject by the Law Commission, three comments have been received.2 Of these replies, one is from a High Court, which has no comments to offer.3 The second is from a High Court, which agrees with the proposal put forth in the Working Paper.4 The third is also from a High Court, which not only agrees with the proposal, but also adds that the proposal will5 go a long way towards giving protection to judicial officers. 1. Law Commission File No. F.2(8)/84-L.C., S.Nos. 2, 3 and 4. 2. All comments received upto 18th August, 1984 have been taken into account. 3. Law Commission File No. F.2(8)/84-L.C., S. No. 2. 4. Law Commission File No. F.2(8)/84-L.C., S. No. 3. 5. Law Commission File No. F.2(8)/84-L.C., S. No. 4. 9.2. The proposals have thus been welcomed.
Main Recommendations10.1. Main Recommendations.—The main recommendations made in this Report may, for the sake of convenience, be summarised as under:—
(1) The short title of the Judicial Officers Protection Act should be revised to read as "The Judges Protection Act, 1850".1
(2) The Act should be extended to the whole of India, except the State of Jammu and Kashmir.2
(3) The provision in the Act for the protection of Judges should be revised3 as under:—
(4) As regards ministerial action taken in pursuance of Judicial acts, the relevant provision of the Act should be revised so as to read as under: —
(5) A new provision should be inserted in the Act to the effect that words and expressions defined in the Indian Panel Code and used but not defined in the Act, have the meanings respectively assigned to them by the Code.51. Para. 4.1, supra. 2. Para. 4.4, supra. 3. Paras. 5.4 and 6.1, supra. 4. Para. 7.1, supra. 5. Para. 8.5, supra. 10.2. Act to be revised.—The Judicial Officers' Protection Act, 1850 should be revised on the lines recommended in this Chapter. K.K. Mathew Chairman. J.P. Chaturvedi Member. Dr. M.B. Rao Member. P.M. Bakshi Part-time Members. Vepa P. Sarathi Part-time Members. A.K. Srinivasamurthy Member-Secretary.
Dated: 10th October, 1984.
Sections 76-78, Indian Penal CodeSections 76 to 78 of the Indian Penal Code read thus—
English Law as to the Protection of JudgesPosition in England—View in 19th Century as to Superior Courts.—English law as to the protection of Judges has had an interesting history. Originally, in England, a distinction was (by case law) made between superior and inferior courts in this context. For example, the view taken in the 19th century, in a case in which there was an unsuccessful action against Mr. Justice Blackburn, was that1-
(a) No action lies against any judge of a superior court in respect of anything done or said by him in the exercise of his duties, no matter how malicious or wrongful8, or (probably) even if he is acting outside his jurisdiction.
(b) Judges of other courts (inferior courts) are liable for acts outside jurisdiction. The authorities stated (so far, of course, only in relation to judges of inferior courts), that a judge was liable for exceeding his jurisdiction.9
(c) By virtue of the Justices Protection Act, 1948, a magistrate is liable—(i) for acts done outside his jurisdiction, and (ii) for acts done within the jurisdiction which are carried out maliciously or without reasonable and probable cause. The burden of providing malice and want of reasonable and probable cause is on the plaintiff10.Decision of 1975.—In 1975, there came an important judgment of the Court of Appeal. The distinction between superior and inferior courts seems to have been over-ruled by that decision of the Court of Appeal, 1975. According to the judgment of Lord Denning M.R. in that case11—
(b) D. Thompson Judicial Immunity and the Protection of Justices, (1958) 21 MLR 517.8. Anderson v. Carrie, (1895) 1 QB 668 (CA). 9. Colder v. Halket, (1840) 3 Moo PC 28: 13 ER 12 (PC): (1835-1842) All ER Rep 306; Palmer v. Crone, (1927) 1 KB 804; Sammy-Joe v. G.P. Mount Pleasant Post Office, (1966)3 All ER 924. 10. O'Connor v. Issac, (1956) 1 All ER 513-527. 11. Sirross v. Moore, 1975 QBD 118: (1974) 3 All ER 776 (785) (CA). 12. Emphasis added. 13. Sirross v. Moore, 1975 QBD 118: (1974) 3 All ER 776 (787, 788) (CA). 14. Brazier Judicial Immunity, (1976) Public Law 397, 408. 15. E.g. Salmond Torts, (1981), p. 387.