There are innumerable instances in India, nay, even in US, UK and other advanced countries, of innocents being convicted and sentenced to death and their innocence being brought to the public domain after they have been executed or have undergone the punishment. In the western countries, such conviction of innocent men and women is the result of the fallibilty of the justice delivery system manned by even the best. Adoption of modern technology in the detection of crime and prosecution, including video recording of court proceedings is certain to reduce innocent people being convicted because of human error to the least.
2. Here I am not delving into the miscarriage of justice due to human fallibility, but of wilful denial of justice for malicious, extraneous and even corrupt considerations. An erroneous decision, one would argue is amenable to correction by review, appeal, revision, etc. Then, why do we need a law to punish erring judges who act on extraneous or other considerations. My counter question is, if every power is a public trust, and if the judges are exercising the sovereign power of the state, we the people, why should they be totally immune from civil and criminal action when they knowingly abuse their office. Provision for appeal or revision will provide no deterrence against wilful abuse of power and corruption, and often a provision for appeal, revision, etc. is a mere mirage.
3. What prompts me to pen these few lines are the large number of instances where the judges who exercise the sovereign, divine power have abused it for extraneous and corrupt considerations, or manifestly so.
4.Let me cite a case, a quite recent one, which will I am sure, will impress upon you, the readers- the members of Parliament, Judges and lawyers- to work resolutely for making a Judicial Accountability Act, a reality.
5.The Parliament enacted the Protection of Women from Domestic Violence Act, noticing the increasing violence women face in their matrimonial homes, and injustice women are subjected to in their very homes. Section 17 to 23 of the Act vests in the Magistrate, vast powers to protect women from violence in their matrimonial homes, in particular, the right to reside in the shared household. The power the Magistrate exercises is the emergency police and judicial power of the sovereign to protect the weak and the meek, those who cannot protect themselves, namely, Rex est procurator factorum. The Magistrate under the DV Act is duty bound to grant protection against violence, protection of the residential rights and money for emergent needs.
6.In the case at hand, the wife of a prominent builder in Mumbai who died while in judicial custody, moved the Metropolitan Magistrate upon orders of the High Court on 25.10.2021 for emergent ex parte relief. The Magistrate who heard the case on 26.10.2021 adjourned the case to 30.10.2021 for orders. However, without pronouncing orders he went on leave for almost 10 days. The widow who was thrown out of her home in her night gown with nothing in hand but her mobile phone, moved the High Court for emergent relief. The vacation bench of the High Court directed the Magistrate to pass orders on or before 10.11.2021. The Magistrate declined ex parte relief holding that before any order is passed, the in-laws of the widow are to be heard.
7. The in-laws appeared on 3.12.2021, filed their vakalatnama, so too their counter affidavit. The window’s lawyer did not seek time to file a rejoinder because it would lead to further delay. He insisted that the case be heard forthwith and appropriate orders be passed. Her in-laws lawyer did not argue, for reasons difficult to be fathomed. The widow’s lawyer insisted that the matter be proceeded on and argued the case and pleaded that orders be passed on the merits of the case, for he cannot force the in-laws’ lawyer to argue the case of his clients.
8.The Magistrate was duty bound to pass the orders on the merits of the case, instead he adjourned the case to March 2022 and eventually to 21 January 2022. The widow approached the High Court and the High Court by order dated 14.12.2021 directed the Magistrate to hear the matter and pass orders on the merits expeditiously, pointing out that the widow had been thrown out of her home and that the purpose of the DV Act is to provide immediate relief to the victims of domestic violence.
9.The Magistrate defying the High Court, strangely passed an order refusing to decide the matter on the merits of the case, saying that he has lost his jurisdiction. Nothing could be a greater affront to reason, or more absurd and shocking. All this happened in the City of Mumbai and despite the orders of the High Court. The High Court would undoubtedly do justice fo her, I am certain. But would that be a real vindication of justice? The Magistrate, whom the poor woman believes wilfully denied her justice, would face no consequence even when he has acted most unfairly, as stated above.
10. There can be no doubt that judges should enjoy immunity, but only to the extend that enables them to discharge their function fearlessly, impartially and independently. In India, Section 3 of the Judges’ Protection Act of 1985, vests in judges absolute immunity and affords full protection even when they act maliciously and wilfully deny justice. So far as the judges of the subordinate judiciary are concerned, they are subjected to disciplinary action at the hands of the High Court. So far as the judges of the Supreme Court and High Courts are concerned, there is no enacted law and the only provision is impeachment, which is practically impossible. In England even the great Bacon was not spared. He was impeached for bribery.
11.If one would examine the legal history, judges were always held accountable where they abuse their office. The Habeas Corpus Act of 1670, renders even the Lord Chancellor or any judge before whom a writ of habeas corpus is sought, if he fails to grant it, liable to a penalty of £500. Such a penalty which the Lord Chancellor would incur if he fails to grant the writ is known as ‘praemunire’. Even the King cannot pardon such offence ( penalty) because the King has no power to forgive a debt owed to his subjects.
- September 29, 2023
- September 29, 2023