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Vicarious liability of judicial officers

Updated: Feb 20, 2022

-By Sudeepthi Veeravilli

Vicarious Liability

The liability for something in the state of being is legitimate. A duty that binds a person or organization legally on debt settlement. Many forms of liability also existed. Each of these is a vicarious liability arising under the common law from a stringent secondary liability. Then the master and servant relationship, suits and proceedings, the sovereign roles of pre and post-constitutional judicial decisions, comes.

In the course of his employment, when a servant commits a wrong, the master is most often guilty. German lawyers call it as “Culpa in eligendo” or “Culpa in inspiciendo”. In order to enforce the doctrine of vicarious liability, the criteria that must be satisfied are, first, that there must be a relationship between the master and the servant between the defendant and the person who has committed the wrong complaint. Second, the servant may have acted wrongly in the course of his employment.

Under Hindu jurisprudence, it was an undisputed reality in ancient India that no one was exempted from the operation of the law. Even the king, a relative of the king, a judge or an ordinary citizen is responsible for equal punishment. The rule of law was deemed supreme and binding on all alike. The king's essential duties were to protect citizens, punish crimes, and maintain dharma or social order.

Immunity for Judicial Officers

We can trace the historical origin of Judicial Immunity back to the era of Justice Lord Edward Coke. In “Floyd and Barker for judges of the higher courts”, Justice Edward Coke supported the need for judicial immunity for the reasons that there would be one losing party and a winning party in any litigation. The judge involved is more likely to blame the losing party and the controversy is expected to embarrass the judge. In addition, such a sustained assault on the judgments and the judge will shake the judge's will and legitimacy, potentially jeopardizing public trust in the system. The defense of judicial immunity has, over time, been expanded to all judges.

The Judicial Officers Protection Act, 1850[i], grants a judicial officer protection for any act committed or directed by him in the exercise of his judicial duty. He is covered even though he exceeds his authority, given that he sincerely believed at that time that he was qualified to do or order the act complained of Section 1[ii] of the Act reads as follows: "No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction. The aim of the above-mentioned defence is to make it possible for law enforcement officers with no fear of unjustified litigation. Such individuals should be allowed to enforce the law, not only openly and self-sufficiently, but without fear."The immunity for judicial officers is absolute if he performed the act in the course of his judicial duties was within his jurisdiction. The same protection is also granted if at the time of the act complained of, he was acting out of jurisdiction, provided that he in good faith believed himself to have jurisdiction to do or order the act as mentioned in Anowar Hussain v. Ajoy Kumar Mukherjee case[iii].

Whenever defense is necessary for the exercise of legal powers, it is so absolute that it is not sufficient to constitute an action by any claim that the actions or words complained of or spoken mala fide, maliciously, corruptly, or without fair or likely cause. If a magistrate acts mala fide and beyond its jurisdiction, no such defense is given. In Sailajanand Pandey v. Suresh Chandra Gupta[iv], the magistrate behaving unfaithfully, unlawfully, and beyond his jurisdiction, ordered the arrest of the complainant. The High Court of Patna held that they were not entitled to the immunity offered by the Law on Protection of Judicial Officers of 1850 and were, therefore, liable for miscarriage.

“The protection of judicial privilege extends to judicial procedures in comparison with administrative or ministerial proceedings only; and when, in a judge's capacity, the protection is not given to actions that occur later, whether judicially and ministerially or administratively.”[v]The position can be explained by referring to the decision of the Allahabad High Court in State of U.P. v. Tulsi Ram[vi]. In this case, the question arising was whether a judicial officer who negligently ordered a person to be imprisoned wrongfully may be responsible for the wrong of false imprisonment. With incompetence, the judicial magistrate signed an arrest warrant for all five individuals.

As a result of this order, the plaintiffs were arrested by the police even though they had been cleared by the High Court. They submitted a complaint seeking compensation from the judicial officer and the State of U.P. for Rs. 2,000., the employer of the judicial officer, alleging that their arrest before their relations and friends on the day of the Holi festival had caused them a great deal of embarrassment, disgrace, physical pain, and mental distress. The lower court of appeal held the judicial officer's immunity under the Law on Protection of the Judicial Officers of 1850 but the Condition of U.P. was vicarious and rulings against the State of U.P were passed for Rs. 500. On an appeal brought by the State of U.P., the Allahabad High Court, the State was found not responsible because its servant's act was in the discharge of his duties levied by law.The High Court, by contrast, ruled that the judicial officer was responsible for the detention of the respondents to the plaintiffs. It was further held that in this case, the judicial officer did not perform any judicial role, but only an executive function during the issuance of warrants and, thus, in this situation, the protection under the Protection Act of Judicial Officers 1850 could not be available. It cannot be claimed that he was at least immuned by the Protection Act of the Judicial Officers by negligently signing warrants.


Judges must be secured against all causes that would remove their ability to normally conduct judicial duties. Immunities had to be improved and to be communicated more to the public. The immunity stops, however. No civilized system should allow an executive to play with the people of his country and say that he is entitled to behave in any way that he is sovereign. With the systemic transition in culture, the idea of public interest has shifted. Today, no legal or political system can put the State above the law because it is unjust and unfair for a person to be unlawfully robbed of his property by negligence on the part of State officials without any remedy. Indeed, "judicial immunity must be a shield for the community, not a sword against it," explained one senior judge. The other clarified that "judiciary immunity cannot be seen as a carte blanche, nor can it be conflated with judicial impunity in the minds of the people."

[i]The Judicial Officers Protection Act, 1850. (No.18 of 1850). [ii]The Judicial Officers Protection Act, 1850, (No.18 of 1850) § 1. [iii] A.I.R. 1965 S.C. 1651. [iv] A.I.R. 1969 Pat. 194. [v] Halsbury's Laws of England, 3rd ed. Vol. 30, p. 709. [vi] A.I.R. 1971 All. 162.

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