JUDICIAL AND EXECUTIVE ACTS

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This article is written by Antara Roy of LL.M of Kazi Nazrul University, Asansol, West Bengal, an intern under Legal Vidhiya

Abstract-

In the intricate system of contemporary governance, the distinct yet interconnected branches of government play a crucial role in maintaining effective operations and upholding democratic values. The Indian penal code addresses every substantive aspect of criminal law. The Indian Penal Code came into effect on October 6, 1860. This code’s main objective is to provide a common penal code. There are 511 sections total in the 23 chapters that make up the IPC. Along with covering offenses, fines, and crimes against the state, other individuals, the public, etc., it also contains extensive exclusions. General defenses are covered in Sections 76 through 106 of Chapter IV of the Indian Penal Code of 1860. A person who breaks the law and is punished is said to be under specific situations that the law prescribes, exempt from that punishment. This notion of a legal rule exception. When it comes to their everyday impact on citizens’ lives, the executive and judicial branches stand out as the most visible and active. While the administration creates and implements policies, the judiciary reviews them to ensure they comply with the law. In the framework of governance, this essay explores the nuances and overlaps between judicial and executive tasks.

Keywords- Judicial Act, Executive Acts, Indian Penal Code, Judge, policies, Jurisdiction

Introduction-

Every significant aspect of criminal law was addressed when the Indian Penal Code was written. The Indian Penal Code was founded on October 6, 1860. The main objective of this legislation is to provide a thorough penal code. The 23 chapters that make up the IPC have a total of 511 sections. In addition to covering crimes, sanctions, and offenses against the state, body, public, etc., it also provides a wide range of exceptions. Sections 76 through 106 of Chapter IV of the Indian Penal Code of 1860 cover the general defenses. A person who has violated the law and is consequently susceptible to punishment is excluded from that punishment due to specific special conditions specified in the law. the notion of being immune from legal punishment. When someone is charged with any offense and wants to rely on an exception, it is their responsibility to show that the facts of the case fit the exception.

Historical Development-

Ancient Muslim and Hindu governments were very well-organized. The most sacred and important work currently has always been the justice administration. In the early Hindu era, the priest acted as the judge instead of the king as the source of justice.[1] The Dharmashatras mandated that the King dispense justice with the assistance of the priest.[2] The Chief Justice (Pradvivaka), Brahmans, other judges, ministers, and learned men assisted the king’s judicial tasks. During the Hindu era, a man of integrity and high caliber might be chosen as a judge, but caste had a role in the decision-making process. According to the Shrimad Bhagavad Gita, a judge is someone who possesses “excellence.”[3] Merit, individual qualifications, and character were the major criteria for choosing Brahmans to serve as judges. There are countless instances in classical Hindu literature when it was stressed how crucial it was to choose qualified Brahmans to serve as judges. Manu, for instance, agreed that a Brahman should be appointed chief justice. Kshatriya or Vaishya judges may be appointed in exceptional circumstances, but Shudra judges should never be chosen.[4] Judges enjoyed the same freedom to keep their offices as the King wished. Although preserving judicial independence in these circumstances was challenging, the judiciary generally maintained sufficient independence to perform its tasks. During the Islamic era, several officers, including the Chief Qazi, Muftis, and Qazis, were tasked with upholding Islamic law. To make decisions for each province, district, and paragana, qazis were chosen. He was expected to be a sensible guy even if the requirements for selection as Qazi had not been made clear. Although many qazis were well educated lawyers, the fundamental requirements for a Qazi were—at least in theory—honesty, objectivity, virtue, and complete detachment. Says Jadunath Sarkar regarding the prerequisites of a Qazi.[5] The Mughal emperor was regarded as the wellspring of justice throughout his reign. Several courts were set up at the provincial, district, parganah, and village levels to administer justice. The Mughals were very self-aware. They took great pride in their ability to correctly assess men.[6] The East India Company occupied Indian territory and established factories all over the nation when the Mughals were overthrown. In Calcutta, Bombay, Madras, and Surat, EIC constructed factories. Three of the presidential towns—Madras, Bombay, and Calcutta—were given court systems by the EIC. The Court of Agents and Council, which was presided over by business employees, initially provided justice to English citizens in Madras. A native court called the Choultry Court was in operation for Indians. The judge was the village headman, Adigar. After the Court of Agent and Council was disbanded, the High Court of Judicature, which was also presided over by the Governor and Council, was founded in Madras. This legal system demonstrates that there was no desire to separate the parties the judiciary from the executive. General administration was handled by the company’s servants, who also presided as judges in Agent and Council court cases. However, during the third phase, from 1688 to 1726, the EIC set up a court of admiralty to hear cases involving maritime infractions. The judges here were skilled in civil law.[7] A new Constitution was enacted by Namibia in 1950. Under the Indian Constitution, numerous types of courts have been formed to administer justice. The Chief Justice and the other members of the Supreme Court are chosen by the Indian President. Before being considered for a position as a Supreme Court judge, a candidate must fulfill unique and exceptional conditions. Anyone who is an Indian citizen may be appointed as a judge of the Court, according to the Constitution. In addition, the President regards him as “a distinguished jurist” despite not acting as a judge on a high court in five years or a lawyer for one in ten. These judges leave the bench when they turn 65.[8] The Indian Penal Code was created in 1834 by the First Law Commission under the direction of Thomas Babington Macaulay and presented to the Governor-General of India Council the following year. A section of it was also based on a condensed codification of English law at the time, Edward Livingston’s Louisiana Civil Code, and the Napoleonic Code, all of which were published in 1825. The Indian Penal Code’s first final draft was presented to the Governor-General of India in Council in 1837, however, it was later revised once more. Even though the code was completed in 1850 and handed to the Legislative Council in 1856, it was not until a generation later, following the Indian Rebellion, that it was included in the British India statute. The legislation was then thoroughly amended by the Legislative Council’s puisne judges for the Calcutta High Court, including Barnes Peacock, who would eventually become the court’s first chief justice and was signed into law on October 6, 1860.[9] The law became operative on January 1st, 1862. Macaulay did not survive to see the criminal legislation he drafted take effect because he passed away before the end of 1859. The Jammu and Kashmir Reorganisation Act, 2019 replaced the Ranbir Penal Code when it came into effect in Jammu and Kashmir on October 31, 2019.

These exceptions fall under two different categories. 1. Excusable exception, 2. Justifiable exception.

Now what is an excusable exception and a Justifiable exception?

Excusable exception- These are the exclusions that excuse the perpetrator without releasing them from responsibility for the crime they committed. This includes factual mistakes, mishaps, insanity, childhood, and drunkenness. Ex- A person of unsound mind who commits a crime cannot be held accountable for it since he did not intend to commit it. The same holds true for uncontrollable intoxication, lunacy, infancy, or a sincere factual error.

1. Mistake of Fact (Sections 76- 79),- According to Sections 76 and 79, there are two separate situations in which a mistake of fact may be raised as a defense. In situations when an accused person has done an offense but honestly believes that he was obligated to do so by law, Section 76 offers a defense. In the context of Section 79, the accused may use the defense that his actions were lawfully justified in good faith due to a factual error.

2. Accident (Section 80)- Under section 80, an accident while doing a legal act is pardoned. In the absence of criminal intent, such an act is justified. When an accused individual injures another person without intending to do so criminally or knowing that they were about to do so, the court will view this as an accident if they were not acting intentionally or negligently when they did it.

3. Infancy (Section 82 & 83)– Since it is believed that children under the age of seven are cognitively incapable of being held criminally accountable, Section 82 outlines the defense offered in cases of any offense committed by a kid under the age of seven. Additionally, Section 83 offers an excuse from criminal responsibility if the offense is committed by a Chilean who is beyond the age of seven but under the age of twelve, and who has not yet developed enough maturity to comprehend the repercussions of the conduct committed.

4. Insanity (Section 84)- In situations when the accused is non-compos mentis, or when the accused was not of sound mind at the time of the commission of the crime, Section 84 covers the defense. A person who is mentally ill has a defense against being found criminally responsible under section 84 because they are unable to understand the nature and consequences of their actions. The types of mental illness that section 84 considers are i) A born idiot who has never been sane, ii) a person who is unwell and not in sound mind, iii) a lunatic who occasionally exhibits mental instability.

. Intoxication (Section 85 & 86) A clause known as Section 85 can be viewed as an addition to section 84. Non-compos mentis also includes states of intoxication. If the accused was intoxicated at the time of the crime and was therefore incapable of understanding its nature and consequences, he is exempt from criminal responsibility.

Justifiable exception- Certain exceptions are permitted where the accused’s actions are justified by the law. Judicial acts (Sections 77 and 78) are covered by this exception.

Ex- Without any malice or negligence on his side, a ship’s captain changed the course of a ship carrying 100 people to preserve their lives, but did so at the expense of the lives of 30 people aboard a smaller boat. He will not be held accountable since necessity is a situation in which minor harm can be inflicted in order to prevent bigger injury.

1. Acts of Judges and acts warranted by Judgment (Sections 77 & 78)- Judges may use Section 77 as a defense if they are operating impartially and sincerely think that they have legal authority to do so. Thus, this clause shields judges from the criminal justice system. A person who has carried out an action in accordance with a Court of Justice’s ruling or order may use the defense provided by Section 78. This is a unique provision where, to a certain extent, the error of law can be argued as a defense.,

2. Necessity (Section 81)– In situations when someone has harmed someone or something in order to stop someone else from causing injury or to avoid doing so, Section 81 offers defense. The accused was forced to do this action because it was necessary, and since the accused had no malicious intent when committing the conduct, the action was justified,

3. Consent (Section 87-92) The clauses that take permission into account as a defense are founded on the adage volenti non-fit injuria, or “he who consents suffers no injury.” Either express or implied consent may be given. In cases of medical negligence where the surgery or treatment was performed with the patient’s permission by the doctor, the laws offering this defense are typically invoked to defend the action,

4. Communication in Good Faith (S. 93) & 5. Acts done under threats (Section 94)- According to Section 94, a person is not held criminally responsible for an act that was performed under duress. However, this clause does not offer protection when the crimes involve murder and are committed against the State. This exception is made because, unless otherwise specified by the Code, no one may invoke the defense of coercion. Because the offenses against the state jeopardize national security, a defense cannot be offered According to Section 93, a communication made in good faith is not punishable as an offense. The harm caused cannot be punished if the communication was made with the intention of helping the other person,

6. Trivial Acts (Section 95)– De minimis non curatlex, which literally translates to “law does not account for trifles,” is the foundation of Section 95. Acts are justified and offered as defenses if they are insignificant and a person with average sensibility and temperament would not view them as harmful.

7. Private Defense (Section 96-106)– under certain situations, private defenses are provided for under Sections 96 to 106. A basic rule established by Section 96 is that no act carried out while engaging in private defense constitutes a crime. But if the accused had enough time to use lawful measures of defense, this one cannot be used. As a result, the system of defenses stipulated by the Code is either defensible or excused. Due to the criminal law’s adherence to the concept of not punishing the innocent, both categories of defenses offer protection to the accused.

The Interplay Between Judicial and Executive Acts-

The relationship between the executive and judicial branches of government is both antagonistic and cooperative.

Legislative checks and balances: In many democracies, mechanisms are in place to prevent an excessive concentration of power in a single branch. Even while the government may have some say in judge selections, the courts have the power to declare executive activities to be unlawful.

Judicial Review- If the judiciary determines that a government action is unlawful, it has the power to investigate it and possibly invalidate it. It is necessary to keep the executive and judicial parts of government in balance.

Judge- According to section 19 of the Indian penal code, the term “Judge” refers to anyone who is legally qualified to render a decision in a civil or criminal legal procedure in addition to the person who is formally recognized as a judge. It also includes decisions that, if upheld by another authority, would be regarded as final. A judge is generally understood to be a person or a public figure who has the power to render judgment in a court of law.

Section 77- In a Judicial Capacity, a Judge’s Action-

This clause protects the judge in his function as a judge. Nothing a judge does when using any authority that is, or that the judge in good faith believes to be, conferred to him by law when acting judicially, constitutes an infringement, according to Section 77 of the Indian Penal Code. Section 77 protects the judge from being charged with a crime. It indicates that a judge is entitled to a defense if they are acting in good faith to carry out duties they believe to be mandated by the law, exercise their judicial authority, or comply with legal requirements when they commit a crime.

A. To invoke the section 77 defense of the judicial act, the following conditions must be satisfied:

B. He must have authority over the situation.

C. The deed must be done with good intent.

D. While performing official duties – A person acting in the role of a judge shall resolve all factual disputes and legal questions. These individuals are exempt from liability for any factual or legal error or omission. The judge grants this exemption after passing judgment. A collector setting up a revenue-related matter or a magistrate removing a barrier, for example, is not thought to be acting in a judicial capacity.

E. Within Jurisdiction- Regardless of how irregular or erroneous they may be, this clause only preserves court actions that are conducted within their purview. As a result, judges acting outside of their jurisdiction would not be protected.

F. Good Faith- According to IPC Section 52, “Nothing is deemed to have been done or believed in ‘good faith’ if it has been done or believed without due care and regard.” It suggests that if an act is carried out with the necessary care and attention, it might be considered to have been done in good faith. Given care and attention suggests a sincere search for the truth. More than just faith is needed to build true faith. For instance, if CrPC standards were not followed, a police officer conducting a search cannot be said to have acted in good faith.

Case- R vs Tolon (1889) [10] Because she acted on the reasonable assumption that her husband had died, Mrs. Tolson was absolved of bigamy in this case. Thus, this formal remarriage. Even though the factual error itself cannot be justified, it may be made if the accused is in good mental health. In other words, if the accused’s act is evil in and of itself, a factual inaccuracy will not provide any protection.

In Meghraj Vs. Zakir[11] A judicial officer cannot be held responsible for an action taken or one that was ordered while performing his official duties within the scope of his authority, according to the Allahabad court’s ruling. The issue of his good faith is not raised in this situation. The issue of good faith only comes into play when a judge acts without jurisdiction, but even then, when jurisdiction is present, the immunity covers any actions that can be seen as an abuse of that power. A judge who intentionally oversteps his or her bounds or breaks the law is not protected by the judges’ privilege under Section 77.

Sec. 78- Act performed in accordance with a Court’s ruling or directive-

The judge’s particular Sections 77 and 78 are also more constrained. This clause does not prohibit anything that is done in accordance with or justified by an order or judgment of a Court of Justice that is now in force. If the person enforcing the judgment or order honestly believes that the court did have the authority to make it, this is true even if the court lacked the authority to make the judgment or order.[12]

Even if a court’s decision is incorrect or invalid, according to Lord Hales, it is nevertheless enough to uphold the ministerial officer. This Section safeguards officers who are following a Court of Justice ruling or order. In other words, this section protects court personnel and other individuals from legal action for anything they carry out in accordance with the judge’s orders or rulings. For instance, a court official detained “B” in accordance with a court order, “A.” In this instance, “A” did nothing improper.

It has been established that a person may be protected even in situations where a court lacks the authority to decide or issue an order, or to determine who would be required to comply it. Additionally, it covers any factual or legal errors or errors committed in carrying out the decision or instruction. However, the person acting in good faith must have believed that the court had this power. The protection offered by this paragraph, however, is inapplicable when someone obeys a judge’s stated orders or goes beyond the scope of their legal power.

In Anderson v. McQueen[13] It should be made clear that while section 77 requires the judge to act and carry out his duties within the jurisdiction in order to be protected, section 78 offers the officer protection even when the court lacks jurisdiction.

Judiciary and Executive Actions Under Other Laws:-

Judges, judicial officers, and anybody else following a court’s instructions or orders may also be protected by other laws, such as the tort law and the Judicial Officer’s Protection Act of 1850.

Executive decisions and the law of torts- Declare that a public official is not liable for performing his or her obligations or executing any laws in the territory under his or her control. The public servant who invokes this defense, though, must do it in a responsible and legal manner.

Judicial actions under tort law

It make it clear that judges have the right to defend any decisions or remarks they make while carrying out their official responsibilities. There is no reason to act against him, even if the actions or statements were not made during an honest fulfillment of his duties. It is discussed in the section on the rationale of tort law. In the case of, the court Narasimha Shankar vs. Iman Valad[14] determined that there is no claim that the defendant (police) acted deliberately toward the plaintiff and observed that the defendant (police) was acting in accordance with the lawful order given by his Superior authority.

According to the Clarke v. Woods[15] decision In cases where the court’s order is invalid, the officials are accountable. Additionally, it safeguards those who work for public figures or agencies. Court employees in India are also protected by the Judicial Officer’s Protection Act. In India, police officials are protected while performing their official responsibilities by clear statutory requirements such the several Police Acts.

The case clearly illustrates that an officer is not liable for actions carried out in accordance with the law unless it can be shown that he did so with malice or ulterior motives. Judges, magistrates, justices of the peace, tax collectors, and other people involved in judicial action while acting in the course of their official duties are protected under Act XVIII of 1850, regardless of whether they are Whether the action is under or outside the purview of their power. Nevertheless, a person acting in good faith at the time of the conduct ought to have a reasonable belief that the action is permitted by their power.

The common exception to executive activities and how they differ from Judicial acts

The executive act exception, included in Section 197 of the Indian Penal Code (IPC), protects public servants and those who work for them from criminal punishment for conduct performed while doing their official duties. This provision provides immunity from criminal prosecution for judgments made in good faith in carrying out such commitments and applies to actions taken by executive authority, including government employees and officers. The purpose of this exception is to prevent illogical or malicious litigation against public officials and to allow them to discharge their duties without fear of being charged with a crime. However, under this provision, criminal charges against a public employee cannot be brought without first getting authorization from the appropriate authority.[16]

Case laws that provide us a clear picture of the most common exceptions

In State of Maharashtra Versus. Narayan Dattatraya Apar- The Supreme Court determined that in this case, the judicial act exception under Section 197 of the IPC only applied to activities conducted by public servants in good faith and within the bounds of their official duties, not to erroneous or disproportionate acts of omission or commission.[17]
R. Rajagopal Versus. State of Tamil Nadu- The judicial act exemption under Section 197 of the IPC only applies to activities conducted while exercising judicial or quasi-judicial powers, according to a decision by the Supreme Court of India in this case. activities taken in an official capacity are not covered by this exception.[18]

These judgments help to clarify the rights and obligations of public servants in the performance of their official duties by offering direction on the extent and applicability of the IPC’s Section 197 exception for judicial acts.

Legislative and executive act analysis-

The judicial act exception of the Indian Penal Code (IPC) is essential in protecting public employees, including judges and magistrates, from pointless or malicious lawsuits originating from actions taken in the proper course of their official duties. In order for the court system to function effectively, public servants must be able to carry out their duties without fear of legal retaliation. However, the IPC’s Section 197 provision for judicial acts has occasionally led to debate and conflicting legal interpretations. According to some opponents, this clause provides public officials with too much protection, allowing them to avoid accountability for decisions that may have been taken in questionable situations or to take actions that are outside the scope of their official duties.[19]

current situation’s necessity and relevance

The judicial and executive act exclusions of the Indian Penal Code (IPC) are very important in protecting public officials from frivolous or malicious lawsuits originating from actions taken while carrying out their official duties. The effective operation of the legal system and the executive branch of government depends on the ability of government personnel to carry out their duties without fear of legal repercussions. Critics claim that these provisions shield public officials from liability for conduct performed in ill faith or outside the scope of their official duties and provide them with too much protection. However, the extent and use of these exceptions have frequently been the focus of discussion and legal interpretation. To make clear what “good faith” means in what a procedure for the review of judgments on prior sanctions for prosecution has been given, and it has been urged that Section 197[20] of the IPC be clarified. To strike a balance between protecting public employees from frivolous lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties, the judicial and executive act exceptions under Section 197 of the IPC should be carefully reviewed and reevaluated.[21]

Conclusion-

From the explanation above, the issue prevents judges from performing their jobs correctly and independently because they are worried that the parties can sue them for the activities they performed during the judicial process. It also applies to anyone acting on behalf of a higher authority, including governmental officials and other individuals. In order to protect the judicial and executive branches from their actions while they carry out their judicial and executive tasks in good faith and within the confines of the law, it is crucial. These broad exceptions serve them well in defense.

References-

O.P. Motiwal, “Changing Aspects of Law and Justice in India” 11 (Chugh Publications 1st edn., 1979)
S.D. Sharma, “Administration of Justice in Ancient India,” 72 (Harman Publishing House, 1988); S.P. Tripathi, “Indian and Constitutional History”, 9 (Central Law Publishing, 3rd edn., 2011): M.P. Singh, “Outlines of Indian Legal & Constitution History” 2 (Universal Law Publishing, 8th edn., 2006).
https://ir.nbu.ac.in/bitstream. Last Visited on 18.9.2023
V. Mehta, “Cosmic Vision:-Manu, in Foundations of Indian Political Thought” 23-39 (Delhi, 1st edn., 1992)
Ishtiaq Husain Qureshi, “The Administration of the Mughal Empire” 253 (Janaki Prakashan Patna 1st edn., 1979).
For details see, S.K. Puri, “Indian Legal & Constitutional History” 44-46 (Allahabad Law Agency, 6th edn., 1983).
From Wikipedia, https://en.wikipedia.org/wiki/Indian_Penal_Code, Last Visited on 14.9.2023
Section 77 of the Indian Penal Code, 1860
Section 78, Indian Penal Code
https://lexpeeps.in/judicial-and-executive-act-general-exceptions-under-ipc/#general Last Visited on 20.9.2023
https://lexpeeps.in/judicial-and-executive-act-general-exceptions-under-ipc/ Last Visited on 21.9.2023
For Case Laws- (https://lexpeeps.in/judicial-and-executive-act-general-exceptions-under-ipc/0) Last Visited on 20.9.2023
https://lexpeeps.in/judicial-and-executive-act-general-exceptions-under-ipc/#general Last Visited on 22.9.2023
Section 197 of IPC, 1860
https://lexpeeps.in/judicial-and-executive-act-general-exceptions-under-ipc/#general Last Visited on 24.9.2023

[1] O.P. Motiwal, “Changing Aspects of Law and Justice in India” 11 (Chugh Publications 1st edn., 1979)

[2] S.D. Sharma, “Administration of Justice in Ancient India,” 72 (Harman Publishing House, 1988); S.P. Tripathi, “Indian and Constitutional History”, 9 (Central Law Publishing, 3rd edn., 2011): M.P. Singh, “Outlines of Indian Legal & Constitution History” 2 (Universal Law Publishing, 8th edn., 2006).

[3] https://ir.nbu.ac.in/bitstream Last Visited on 18.9.2023

[4] V. Mehta, “Cosmic Vision:-Manu, in Foundations of Indian Political Thought” 23-39 (Delhi, 1st edn., 1992).

[5] Ibid

[6] Ishtiaq Husain Qureshi, “The Administration of the Mughal Empire” 253 (Janaki Prakashan Patna 1st edn., 1979).

[7] For details see, S.K. Puri, “Indian Legal & Constitutional History” 44-46 (Allahabad Law Agency, 6th edn., 1983).

[8] Id., Art. 217.

[9] From Wikipedia, https://en.wikipedia.org/wiki/Indian_Penal_Code, Last Visited on 14.9.2023

[10] R vs. Tolson (1889) 23 QBD 168

[11] In Meghraj vs. Zakir

[12] Section 78, Indian Penal Code

[13] The Indian Penal Code and another Acts of The Governor General Relating to Offences By Sw. F Agnew Of Lincoln’s Inn. , Esq

[14] Narasimha Shankar vs. Iman Valad