Author: Aditya Srivastava, United University
Abstract
Transparency in the judiciary is necessary for maintaining public trust, ensuring responsibility, and confirm the rule of law. However, a controversial issue that often arises is the judiciary’s immunity from criminal proceedings—particularly the lodging of First Information Reports (FIRs) against judges. When ordinary citizens, political leaders, or even legal professionals express concerns over the inability to file FIRs against allegedly corrupt or abusive judges, it raises a critical question: is the judiciary truly transparent? Or does this immunity create a protected class immune to the law?
This article delves into the philosophical and legal aspects of judicial transparency in India, focusing on the challenges posed when judges are seemingly insulated from criminal accountability. It survey the historical roots of judicial exception, constitutional provisions, landmark judgments, comparative perspectives, and the tension between judicial independence and public accountability. The article ultimately argues for a balanced approach that upholds both the dignity of the judiciary and the public’s right to justice and transparency.
Introduction
The judiciary is often introduced as the guardian of the Constitution and the last hope of the common people. Its decisions affect every corner of society, from individual liberties to the workings of governments. Given such power, it becomes critical that the judiciary not only functions independently but also transparently. However, when questions arise about why FIRs cannot be filed against sitting judges without prior permission from higher authorities, concerns about unchecked judicial power and lack of accountability become central.
In a democracy where “no one is above the law” is a guiding principle, the perception that judges enjoy an impenetrable shield against legal scrutiny threatens public confidence in the judicial system. This article seeks to unpack the delicate and often controversial issue of whether this form of legal immunity is justified or if it undermines the very principles the judiciary stands to protect.
Judicial Immunity: A Legal Shield or an Obstacle to Justice?
1. Concept and Rationale Behind Judicial Immunity
Judicial immunity refers to the protection granted to judges against legal actions—both civil and criminal—for acts done in the course of their judicial duties. This principle is based on the belief that judges must be able to make decisions freely and fearlessly, without the threat of personal liability.
However, this immunity is not absolute. It generally covers acts within jurisdiction and in good faith. But ambiguity arises when there is alleged misconduct, corruption, or abuse of power. Should the public have the right to initiate criminal proceedings in such cases?
2. Legal Provisions in India
In India, the Constitution and several statutes provide judicial protection:
Article 124(4) and (5): Impeachment of Supreme Court judges for misbehavior.
Judges (Protection) Act, 1985: Grants immunity to judges for acts done in discharge of official duty.
Section 197 CrPC: Requires prior sanction to prosecute public servants, including judges.
Veeraswami v. Union of India (1991): Held that one can not register a FIR against a judge of the Supreme Court or High Court without the prior approval of the Chief Justice of India.
While these protections were crafted to protect judicial independence, their usage has sometimes created a perception of judicial superiority and inaccessibility to the rule of law.
Why FIRs Against Judges Are Restricted
The key judgment that governs this area is K. Veeraswami v. Union of India, where the Supreme Court ruled that one can not lodge a FIR against a judge of the High Court or Supreme Court without the prior permission of the Chief Justice of India (CJI). The rationale was:
To prevent frivolous or malicious complaints from disgruntled litigants.
To uphold the independence of the judiciary, ensuring judges are not harassed.
To maintain dignity and sanctity of the judicial office.
However, this judgment effectively gives the judiciary the sole power to permit action against its own members, raising the issue of conflict of interest and lack of external oversight.
The Democratic Concerns
1. Accountability vs. Independence
While judicial independence is vital, complete immunity without accountability erodes democratic values. Judicial decisions directly affect people’s lives and political outcomes. If allegations of corruption or criminal behavior arise, the inability to file an FIR—even to begin a formal inquiry—creates a sense of injustice.
2. The Problem of Internal Regulation
The current model relies on internal judicial mechanisms like in-house procedures to deal with allegations. But these are not governed by statutory law and are often opaque. There’s no obligation to disclose proceedings, findings, or actions taken—if any.
3. Public Perception and Trust Deficit
The judiciary derives its power from public trust. If the public sees that judges are immune from even preliminary criminal scrutiny, a trust deficit builds. This can lead to:
Cynicism toward the judicial process.
Reduced moral authority of the courts.
Erosion of rule of law.
Comparative Global Perspective
Many democracies balance judicial immunity with accountability:
USA: Judges have immunity for judicial acts but can be criminally investigated. The FBI has investigated and prosecuted judges for bribery and fraud.
UK: Judicial immunity exists for acts done in judicial capacity, but misconduct outside those bounds is prosecutable.
Canada: Criminal acts are not covered by judicial immunity. Transparency is ensured through public commissions and independent bodies.
South Africa: Judges can be investigated by the Judicial Service Commission.
India stands at a crossroads—while promoting judicial independence, it must also uphold transparency and fairness.
Case Studies and Real-World Examples
1. Justice Soumitra Sen (Calcutta High Court)
Accused of misappropriating public funds before becoming a judge. Though he was impeached by the Rajya Sabha, he resigned before the Lok Sabha could act, avoiding final consequences.
2. Justice P.D. Dinakaran
Allegations of land grabbing and corruption. The in-house probe was initiated, but no criminal FIR was filed due to judicial immunity, and he later resigned.
3. Justice C.S. Karnan
The Supreme Court sentenced him for contempt for leveling corruption allegations against fellow judges. This case showed that judges could be held accountable but also demonstrated the judiciary’s reluctance to allow independent scrutiny.
Suggested Reforms for Transparency
1. Judicial Complaints Authority
An independent statutory body to examine complaints against judges, with powers to recommend FIRs or disciplinary action.
2. Amendment of Veeraswami Judgment
Modify the requirement of prior approval by CJI to allow oversight by an independent committee.
3. Public Access to In-House Procedures
All disciplinary proceedings must be recorded, reported, and subjected to RTI or judicial review.
4. Whistleblower Protection for Court Staff and Lawyers
Encourage reporting of judicial misconduct by ensuring protection.
5. Media Freedom in Reporting Judicial Misconduct
Ensure that contempt laws do not silence legitimate public criticism or reporting.
Balancing Act: Judicial Independence and Public Interest
The judiciary cannot function under fear or pressure. But it also cannot function without trust. A middle path must be carved out where:
Genuine complaints are promptly investigated.
Judges found guilty of misconduct are prosecuted like any other citizen.
Judges who are innocent are protected from baseless accusations.
This requires a legally mandated, independent, and transparent system.
Conclusion
Judicial transparency is not an option—it is a necessity for a thriving democracy. The inability to file an FIR against a judge without prior approval may protect judicial independence but also raises serious questions about accountability and equality before the law. While judicial immunity serves a purpose, it must not become a shield for corruption or abuse of power.
India must update its laws and structures to strike a constitutional balance—ensuring that judges are free from intimidation but not free from justice. Public confidence in the judiciary depends on its perceived integrity, and without reform, that confidence risks being lost. A judiciary that upholds the Constitution must also be subject to its spirit: justice, equality, and accountability for all.
FAQS
1. Can an FIR be filed against a sitting judge in India?
No, not directly. As per the Supreme Court’s judgment in K. Veeraswami v. Union of India (1991), an FIR cannot be registered against a sitting High Court or Supreme Court judge without the prior approval of the Chief Justice of India. This provision is intended to protect judicial independence.
2. Why are judges given immunity from criminal proceedings?
Judicial immunity ensures that judges can make decisions independently, without fear of personal consequences. It protects the judiciary from harassment, frivolous complaints, or pressure from powerful individuals who may be affected by judicial rulings. However, this immunity is not intended to shield corruption or abuse of power.
3. Does this mean judges are above the law?
No, judges are not above the law. They can be removed from office through impeachment under Article 124(4) of the Constitution, and may be subject to internal disciplinary procedures. However, their protection from FIRs without approval creates a perception of being beyond legal scrutiny, which concerns many critics.
4. What happens if a judge is found guilty of corruption?
If allegations of corruption or misconduct against a judge are proven through internal mechanisms, the judge may be asked to resign or may be impeached by Parliament. However, due to the lack of transparency in these proceedings and the difficulty in initiating them, few judges have been held publicly accountable.
5. Is there any way to improve transparency in the judiciary?
Yes. Several reforms can help, including:
Creating an independent judicial complaints commission.
Making in-house inquiry reports public.
Revisiting the Veeraswami judgment.
Allowing limited public or parliamentary oversight.
6. How does this issue affect common people?
When the public feels that judges are untouchable even in cases of serious allegations, it undermines trust in the legal system. Justice must not only be done but must be seen to be done. Transparency builds trust and makes the judiciary stronger in the eyes of the public.
7. Are there examples from other countries?
Yes. In the United States, UK, and Canada, judges can be investigated and prosecuted for criminal acts. Their judicial acts are protected, but misconduct outside the bench is not immune. This promotes accountability without compromising independence.
8. Can media report on judicial misconduct?
Media can report on judicial misconduct, but must be cautious due to contempt of court laws. Honest criticism based on facts is allowed, but malicious or scandalous reporting can be punished. Balancing freedom of the press and respect for the judiciary is crucial.
