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Judges Protection Act: Plea In Bombay High Court Challenges 'Absolute Immunity' To Judges Even When Justice is 'Wilfully Denied'

Sharmeen Hakim
15 Jan 2022 12:46 PM GMT
Judges Protection Act: Plea In Bombay High Court Challenges Absolute Immunity To Judges Even When Justice is Wilfully Denied
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A petition filed in the Bombay High Court challenges Section 3 of the Judges (Protection) Act of 1985 that prevents civil or criminal proceeding against a Judge for anything done in the course of his official or judicial duty.The plea alleges that the provision confers "absolute immunity to the judges even when they act maliciously and wilfully deny justice; on extraneous and...

A petition filed in the Bombay High Court challenges Section 3 of the Judges (Protection) Act of 1985 that prevents civil or criminal proceeding against a Judge for anything done in the course of his official or judicial duty.

The plea alleges that the provision confers "absolute immunity to the judges even when they act maliciously and wilfully deny justice; on extraneous and corrupt considerations."

According to Section 3 of the Act, no court can entertain civil, criminal proceedings against a judge for acts or words spoken by him while performing his duty as a judge. However, the Central or State Government, the Supreme Court of India or an High Court can take civil, criminal or departmental action against a judge.

The petitioner, Sabina Lakdawala, is the estranged wife of builder Yusuf Lakdawala who succumbed to terminal illness in prison. In the writ petition filed under Articles 226, 227, she seeks directions to strike down the section or read it down so that immunity is limited to where the judge doesn't act maliciously and wilfully deny justice.

She claims that despite 'wilful denial of Justice' by the Magistrate of 12th court, Bandra, she cannot institute a suit for damages or any criminal proceedings because of the absolute immunity provided under the Act. The Magistrate had refused ex-parte relief as well as interim relief to the complainant in her Domestic Violence case against the in-laws.

The plea states that Section 3 of the Act renders section 197 of the CrPC (sanction to prosecute) redundant. It negates the effect of laws which favour judicial accountability, by declaring that courts cannot take cognizance of wrongdoings if the judge or Magistrate was performing his official duty.

It underscores that only allowing the government or higher judiciary to take action robs citizens' cherished right to seek accountability.

"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."

The plea states that the doctrine of res-judicata mandates a competent court's decision to bind both parties, no matter howsoever erroneous it could be. However, impropriety is viewed very seriously in every country that follows common law.

Facts of the Case

The petitioner said she filed a DV application in the 12th Bandra Metropolitan Magistrates court on October 23, 2021, against her in laws after her husband passed away. The matter was mentioned and heard for ex-parte reliefs on October 30, 2021. However, the Magistrate went on Diwali leave on the same day without passing an order.

She claimed to have learned from reliable sources that the Magistrate would delay the proceeding. She then approached the Bombay High Court, which directed the Magistrate to pass orders on her plea.

The in-laws were subsequently called upon to file a counter-affidavit. However, according to her petition she was not granted relief despite no arguments being advanced by her in-laws' counsels.

The judge also sought to adjourn the matter for March, 2022, later preponing the hearing to December 22, 2021. "Strangely, the Magistrate, even on the third occasion, refused to pass an order on the merits of the case, offering as reason, the unthinkable, the unintelligible, that he has lost his jurisdiction."

"The Respondent Magistrate could pass orders which are manifestly unjust and illegal because the Petitioner as a litigant, a consumer of justice, has no forum to enforce her remedies, namely, civil and criminal. The Petitioner would quantify the mental and physical agony, which are cannot be fully be measured in terms of money at Rs. 10 crore, because being denied justice she suffered in terms of business empire of her husband which is worth over 1000 crores and was left to fend for herself, homeless and at the mercy of others."

The petitioner states that she is approaching the High Court after filing representations with the President of India, Vice President, Chief Justice of India, etc. She said in the plea filed through Nedumbara and Nedumbara that High Court has supervisory powers over subordinate courts.

The respondents to the plea include the Magistrate, Department of Law and Justice, Maharashtra Public Service Commissioner, and the Registrar, High Court.

The plea will come up for hearing in due course.

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