Report No. 69

Chapter 63

Judicial Privilege

63.1. Certain special provisions are needed in relation to Judges and Magistrates, if embarrassment is to be avoided to them, and if they are to discharge their functions properly. Indian Statute law has a number of provisions recognising the special status of judicial officers, and special provisions exist in the substantive civil1 and criminal law,2 and also in the law of procedure,3 in regard to Judges and persons similarly situated.

In the field of the law of evidence, the matter is taken care of by section 121, which provides that no judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. We shall deal with the illustrations to the section later.

1. The Judicial Officers' Protection Act, 1855.

2. Sections 76 to 79, Indian Penal Code.

3. Section 197, Code of Criminal Procedure, 1973.

63.2. Principle.-

The broad principle underlying this section is that a mater of which the Judge took cognizance in his judicial capacity, shall not be raised in evidence if the Judge objects, unless the superior court grants permission for the purpose. This does not, of course, debar examination of the Judge in regard to other matters which occurred in his presence whilst he was acting as a Judge. The section applies to Magistrates also; but, for brevity's sake, this discussion will refer only to Judges.

63.3. There are three illustrations to the section. Illustration (a) applies to a Magistrate. A, on his trial before the Court of Sessions, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior court.

Illustration (b) also refers to a Magistrate. A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior court. In both these cases, the matters in question came to the knowledge of the Magistrate in his official capacity and the matters were, so to say, directly connected with that capacity. Hence the privilege applies. Illustration (c) relates to a Session Judge. A is accused before the Court of Session of the offence of attempting to murder a police officer whilst on his trial before B, a Session Judge. B may be examined as to what occurred.

Thus, with regard to matters not coming to his knowledge, in Court as Judge, a Judge is as competent and compellable a witness any other person.1 The illustration brings out the difference between judicial conduct and cognizance on the one hand and other matters. The fact that a judicial proceed was the occasion when the act or event occurred confers no privilege. There must be an integral connection between the Act or event and the judicial capacity.

1. Stephen's Digest, Article 111 and Note XLII.

63.4. The section is generally stated to be based on the general grounds of convenience1 (e.g. the inconvenience of withdrawing a Judge from his own Court, and public policy.2 But it is possible to seek its justification in a deeper rationale-that of judicial independence at least in so far as it protects conduct. If the conduct of a judge or magistrate is to be investigated-even by way of evidence-some safeguards are needed.

1. See-

(a) R. v. Cazard, (1838) 8 C&P 595; Halsbury's, 3rd Edn., Vol. 15, p. 420, para. 756, f.n. (c).

(b) Buccloouch v. Metropolitan Board of Works, (1815) LR 5 HS 418 (433).

(c) R. v. Lord Thanel, 27 ST 836.

2. For the law before the Act, see Ramaswami v. Ramu, (1867) 3 Mad HCR 372.

63.5. English law.-

There is a substantially similar privilege in England, though the law on the subject is not codified. A Judge of the Supreme Court may refuse to give evidence as to judicial proceedings which have taken place before him.1

1. Halsbury's, 3rd Edn., Vol. 15, p. 420, para. 754.

63.6. Meaning of 'Judge'.-

The expression 'Judge' is not defined in the section, but we can take it as broadly having the same1 meaning as in Indian Penal Code.

1. Section 19, I.P.C.

63.7. Whether judge can be a witness.-

Commentaries on the Act often discuss the question whether a Judge can be a witness in the very sense under trial. In our view, there can be only answer to the question, namely, he cannot be a witness. It is somewhat unfortunate that the question is discussed at length, with a citation of much irrelevant case law. We believe that the position was correctly stated by Markby J. in a Calcutta case reported in 1875-Empress v. Donnelly, 1875 ILR 2 Cal 405 (413, 414) (per Markby, J., with Prinsep, J., agreeing).

63.8. No ruling of importance has been reported since then, that would detract from the soundness of his exposition of the law or throw any doubt on it. In Empress v. Donnelly, Markby J., observed: "As to the second point, whether the conviction is illegal because the Magistrate himself gave evidence, that question seems to me to resolve itself into this: Is a sole Judge of law and fact competent to decide a case in which he has himself given evidence? It has been strongly contended on the part of the Crown that he is so, and that there is no impediment in law to a Judge giving evidence, and then disposing himself of the case by his sole opinion. No instance of this kind has, however, been found, and no authority of any Judge or text-writer has been cited in support of such a proposition."

Later on, in the judgment, Markby, 3. observed:-

"The Appeal Court would deal with the evidence including that of the Judge. But in my opinion the evidence of the Judge, being practically incapable of challenge or contradiction, ought not to be even taken. Moreover, a Court of appeal is not a check in the same way that Judges sitting together are a check upon each other. I am, therefore, of opinion that a Judge who is a sole Judge of law and fact cannot file his own evidence and then proceed to a decision of the case in which that evidence was given."

63.9. Prinsep, J., in the same case considered the authorities quoted by Mr. Justice Norman in one of the earlier cases-(also quoted by Markby J.) as 'conclusive', that one, who is sitting as a Judge, is not competent also to be a witness. We have no further comments on the section.

We would like to mention that in the United States, an unusual occasion for ascertaining the privilege of the Judges as to confidentiality arose1 recently. It arose in the very important case involving the validity of right of way and permits granted by the Department of Interior for the construction of the trans-Alaska Pine-line extending to 789 miles and costing 531/2 billion. While the case was under consideration before the Court of Appeal, a United States Senator wired the Chief Judge of the Court, requesting him to give information to the Senator as to certain judges who were supposed to have disqualified themselves. The Senator wished to know their identity and reasons for disqualification. In the reply for the Court of Appeal for the District of Columbia by the Chief Judge 13azelon, that court exercised its privilege to protect the confidentiality of its deliberations stating as follows:-

"In re your telegram of February 5, 1973 inquiring as to whether I or more judges have disqualified themselves in the trans-Atlantic (sic) pipeline cases currently under advisement and in which you request their identities and reasons if this is the case. The opinion, when issued, will reveal the names of the judges who have participated therein. With great respect, we believe that further reply to your inquiry would not be appropriate with cordial wishes".

1. Leon Friedman United States v. Nixon, (1975), P. 77.

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