Judicial Immunity or Judicial Impunity: A Comparative Constitutional Crisis
“No one is above the law” is a constitutional mantra recited often, but in India, it rings hollow when applied to the judiciary itself. Unlike in other constitutional democracies where judges enjoy limited immunity for judicial acts alone, India’s judiciary is shielded by an impenetrable wall of procedural safeguards and self-regulated mechanisms that make actual accountability nearly impossible. This shield has evolved into what critics rightly term judicial impunity. Through a comparative lens, examining judicial accountability in countries like the United States, United Kingdom, Canada, and Germany, this article explores the thin but critical line between judicial immunity and judicial impunity, using jurisprudential evolution through landmark judgements.
India: A fortress of judicial impunity cloaked in constitutional safeguards
In India, judicial immunity is deeply entrenched, shaped by constitutional provisions, statutes, and judicial precedents. Articles 124 and 217 of the Constitution of India establish that Supreme Court and High Court judges can only be removed by a Presidential order following a parliamentary resolution supported by a special majority in both Houses, as outlined in Articles 217(1)(b) and 218. The Judges (Inquiry) Act, 1968, further codifies this process, requiring a motion signed by 100 Lok Sabha or 50 Rajya Sabha members, followed by an inquiry by a three-member Judicial Inquiry Committee (JIC).
The in-house inquiry procedure, detailed in Addl District and Sessions Judge ‘X’ v. State of MP (2015), exemplifies the multi-layered safeguards. The Judges’ Protection Act, 1985, shields judges from civil liability for acts done in their judicial capacity, while the Veeraswamy v. Union of India (1991) judgment mandates CJI approval for registering an FIR against a sitting judge for criminal acts like bribery. This precedent, rooted in protecting judicial independence, has been criticized for fostering impunity, as it places judges beyond ordinary legal scrutiny. The collegium system, established through the Second Judges’ Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), further insulates the judiciary. By vesting appointment powers exclusively in the judiciary, it limits executive and legislative oversight, raising concerns about favouritism and lack of transparency. The First Judges’ Case (S.P. Gupta v. Union of India, 1981) had briefly tilted the balance toward executive primacy in appointments, but the collegium’s reassertion in the Second Judges’ Case solidified judicial self-governance.
The ongoing case of Justice Yashwant Varma, where an in-house inquiry report has been forwarded to the President and Prime Minister, highlights the procedural hurdles. The current removal mechanism is a labyrinth designed more for delay than delivery. A sitting judge has nine lives like a cat, before actual removal is enforced; (i) When the allegations first surface, (ii) On the Chief Justice of the High Court’s preliminary findings, (iii) On the CJI’s assessment post HC’s CJ’s report, (iv) After formation of in-house committee, (v) Upon CJI’s advice to resign post-inquiry, (vi) During the Judges Inquiry Committee (JIC) stage, (vii) After the JIC report to Speaker/Chairman, (viii) Before tabling in the House, (ix) During the House debate.Since 1950, no judge has ever been removed, and only a few faced serious proceedings, Justice V. Ramaswami being the most prominent, who survived due to abstentions in Parliament.
Comparative perspectives
United States: In the U.S., judicial immunity is limited to acts performed in a judicial capacity, as established in Bradley v. Fisher (1872). Judges can be prosecuted for criminal acts like bribery or fraud without special permission, as seen in United States v. Hastings (1983), where a federal judge was convicted of bribery. The Constitution allows impeachment by Congress, but federal judges enjoy life tenure, and removal requires a House impeachment followed by a Senate trial. State judges face additional accountability through disciplinary commissions, like California’s Commission on Judicial Performance, which can recommend sanctions or removal. The U.S. balances immunity with accountability, ensuring judges are not above the law for non-judicial acts.
United Kingdom: In the UK, judicial immunity applies to judicial decisions, but judges face criminal liability like ordinary citizens. The Judicial Conduct (Judicial and Other Office Holders) Rules 2014 govern complaints, handled by the Judicial Conduct Investigations Office (JCIO). Serious cases can lead to removal by the Lord Chancellor and Lord Chief Justice for High Court judges or by Parliament for senior judges under the Senior Courts Act 1981. The 2003 removal of Justice David Penry-Davey for misconduct illustrates this mechanism. The UK’s system emphasizes transparency, with public reports on judicial discipline, contrasting India’s opaque in-house inquiries.
Canada: Canada’s Judges Act establishes the Canadian Judicial Council (CJC), comprising senior judges, to investigate complaints. Judges enjoy immunity for judicial acts but can be prosecuted for crimes without special permission, as seen in R v. Matchett (1991), where a judge faced criminal charges. The CJC can recommend removal, but only Parliament can act, requiring a joint address of both Houses. Canada’s system prioritizes public trust, with the CJC publishing detailed reports, unlike India’s secretive processes.
Germany: In Germany, judges have functional immunity under the German Judiciary Act for judicial acts, but Nipkow but face criminal prosecution for personal misconduct. The Basic Law requires a two-thirds majority in the Federal Constitutional Court for removal, a high but achievable threshold. The case of Judge Walter K. (2010), convicted of bribery, demonstrates that judges are not above the law. Germany’s transparent disciplinary process contrasts with India’s complex and insulated system.
The paradox of impunity vs. immunity
India’s system prioritizes judicial independence to an extent that often resembles impunity. The requirement of CJI approval for criminal investigations, as per Veeraswamy, and the arduous removal process under the Constitution create a perception of untouchability. In contrast, the U.S., UK, Canada, and Germany limit immunity to judicial acts, allowing criminal prosecution without special barriers. Disciplinary mechanisms in these countries are more transparent and accessible, fostering public trust. India’s collegium system, reinforced by the Second Judges’ Case, further reduces external oversight, unlike the more balanced appointment processes in other nations, such as Canada’s advisory committees or Germany’s mixed judicial-executive panels. The multiple resignation opportunities in India’s removal process, while designed to protect independence, often delay or prevent accountability, as no judge has been removed since 1950.
Challenges and reform
The Indian system’s complexity safeguards independence but undermines public trust when allegations of corruption or favouritism arise. The Veeraswamy ruling, requiring CJI approval for FIRs, effectively places judges above ordinary legal processes, unlike in the U.S., UK, Canada, or Germany, where no such barrier exists. The collegium system’s opacity fuels perceptions of favouritism, as seen in controversies over judicial appointments. Reforms could include:
1. Transparent disciplinary processes: Adopting models like Canada’s CJC or the UK’s JCIO, with public reporting, could enhance accountability without compromising independence.
2. Criminal accountability: Amending Veeraswamy to allow FIRs without CJI approval for non-judicial acts would align India with global standards.
3. Balanced appointments: Introducing independent oversight in the collegium system could address favouritism concerns.
4. Streamlined removal: Simplifying the removal process, while retaining safeguards, could make accountability feasible.
Conclusion
Judicial immunity is essential to protect judges from frivolous litigation, but India’s system veers toward impunity, with excessive procedural barriers and limited external oversight. The U.S., UK, Canada, and Germany demonstrate that robust immunity can coexist with accountability through transparent disciplinary mechanisms and equal application of criminal law. Cases like Veeraswamy and the collegium rulings highlight India’s unique challenges, while the Justice Varma case underscores the need for reform. A balanced system, ensuring both independence and accountability, is critical for restoring public trust in the judiciary.
Authored by
Adv. Somesh Pandey
