Who May Not Be Sued

What protects a judge now. The Judges (Protection) Act 1985, Act 59 of 1985, is the statute in force. Section 2 defines "Judge" to mean not only a person officially designated as a Judge but also every person empowered by law to give a definitive judgment in a legal proceeding, or a judgment which if not appealed would be definitive, or which if confirmed by another authority would be definitive, and every member of a body empowered to give such a judgment. Section 3(1) provides that, notwithstanding anything in any other law, no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Section 3(2) preserves the power of the Central Government, a State Government, the Supreme Court or a High Court to take action against a Judge under any law.

The definition in section 2 is wide enough to cover a Magistrate, a member of a tribunal and, on its terms, a member of a body that decides. So the practical answer to "can a judge be sued in tort?" in 2026 is: no, for anything done in the discharge of judicial duty, by force of section 3 of the Act of 1985.

The State

The State is not immune in India in the way the Crown once was in England, and article 300(1) of the Constitution is the provision that settles how far it is liable. The topic belongs to chapter [Vicarious Liability of the State], and two cases fix the outline.

Facts. State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, decided on 2 February 1962. A Government jeep being driven from a repair shop to the Collector's residence was driven rashly and negligently by a State employee and knocked down a pedestrian, who died in hospital. His widow and daughter sued the State.

Held. The State was liable. The liability of the State for a tort committed by its servant within the scope of his employment is the same as that of any other employer. Article 300(1), by using the words "in like cases", refers back through the Government of India Acts to the position before the Constitution, so that the State's liability is that of the East India Company.

Facts. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, decided on 29 September 1964. Police at Meerut arrested a partner of a bullion firm on suspicion and seized gold and silver from him, which were kept in the police malkhana. The head constable in charge misappropriated the gold and absconded to Pakistan. The firm sued the State for its value.

Held. The claim failed. The powers to arrest, to search and to seize are conferred by statute on specified officers and can properly be characterised as sovereign powers, so although the negligence was that of State employees in the course of their employment, no claim lay against the State. The Court approved the P. and O. Steam Navigation case, distinguished Vidhyawati, and suggested that Parliament legislate on the subject.

Why they matter here. Together they set the sovereign and non-sovereign division, which chapter [Vicarious Liability of the State] then follows to N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, where the Supreme Court held that the doctrine of sovereign immunity has no place in a modern welfare State.

Minors, parents and corporations

A minor is liable for his own torts. Infancy is not a defence, because tortious liability does not depend on the capacity to contract. Two qualifications matter. Where the tort requires a particular mental state, a very young child may be incapable of it. And where the claim is in substance a claim on a contract that the minor could not make, it cannot be dressed up as a tort.

A parent is not liable merely because the wrongdoer is his child. He is liable where the child was acting as his servant or agent, or where the parent's own negligence, in giving a young child a dangerous thing for example, caused the harm.

A corporation may be sued for torts committed by its servants in the course of their employment, and for torts committed by its directing organs. It cannot be sued for a wrong which by its nature cannot be committed by an artificial person, and an act wholly outside its objects raises a question of whether it was the company's act at all.

A worked example

A District Magistrate signs a detention order which is later held illegal. The detenu wants to sue.

The Magistrate, acting judicially, is protected by section 3 of the Judges (Protection) Act 1985 for anything done in the discharge of judicial duty. Where the function was executive rather than judicial, that Act does not protect him and the ordinary law applies.

The State may be liable. On Kasturi Lal the exercise of a statutory power of that kind was called sovereign; on N. Nagendra Rao the sovereign or non-sovereign division no longer decides the question in a welfare State.

The Constitution provides the surest route: a petition under article 32 or 226 for compensation for the violation of article 21, which chapter [Constitutional Tort] deals with, and to which sovereign immunity is no answer, as Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, holds.

The Governor, if the order was made in his name, is not answerable under article 361, but that does not immunise the State.

What it does NOT mean

It does not mean these defendants can do no wrong. The immunities are about the forum and the office, not about the morality of the act.

It does not mean a judge cannot be dealt with. Section 3(2) of the Judges (Protection) Act 1985 expressly preserves the power of the Government, the Supreme Court and the High Courts to act against a judge under any law.

It does not mean the State is immune. In India the State can be sued in tort. What was in doubt was the extent, and N. Nagendra Rao narrowed the doubt sharply.

It does not mean a minor escapes. A minor is liable for his own torts; only the transaction that is really a contract is outside.

Quick revision

1. Foreign States: section 86 of the Code of Civil Procedure 1908 requires the consent of the Central Government.
2. Diplomatic agents: immune under the international law of diplomatic relations as given effect by statute.
3. President and Governors: article 361; not answerable for the exercise of the powers and duties of office; two months' notice for civil proceedings during the term.
4. Judges: the Judicial Officers Protection Act 1850 was repealed by the Repealing and Amending Act 2023, in force 17 December 2023.
5. The Judges (Protection) Act 1985, section 3: no court shall entertain any civil or criminal proceeding against a person who is or was a Judge for anything done in the discharge of judicial duty; section 2 defines "Judge" widely; section 3(2) preserves disciplinary powers.
6. The State: article 300(1); State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, liable; Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, not liable for an exercise of sovereign power.
7. Minors are liable for their own torts; parents are not liable merely as parents.
8. Corporations are liable for torts of their servants in the course of employment.

Test yourself

1. Who cannot be sued in tort? Explain with the provisions in force. A foreign State cannot be sued without the consent of the Central Government under section 86 of the Code of Civil Procedure 1908, and diplomatic agents are immune under the international law of diplomatic relations as given effect in India. The President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office under article 361 of the Constitution, and no civil proceeding claiming relief against them personally may be instituted during their term without two months' notice. A judge cannot be sued for anything done in the discharge of judicial duty: the protection now comes from section 3 of the Judges (Protection) Act 1985, since the Judicial Officers Protection Act 1850 was repealed by the Repealing and Amending Act 2023 with effect from 17 December 2023. The State may be sued, to the extent settled by article 300(1) and the cases on it. A minor is liable for his own torts, and a parent is not liable merely as a parent.

2. What is the present statutory protection of judges in India? The Judges (Protection) Act 1985. Section 2 defines a Judge to include not only a person officially designated as such but every person empowered by law to give a definitive judgment in a legal proceeding, or one which would be definitive if not appealed or if confirmed by another authority, and every member of a body empowered to give such a judgment. Section 3(1) provides that no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken when acting or purporting to act in the discharge of his official or judicial duty. Section 3(2) preserves the power of the Central Government, a State Government, the Supreme Court or a High Court to take action against a Judge under any law. The older Judicial Officers Protection Act 1850, which most textbooks still cite, stands repealed by the Repealing and Amending Act 2023.

3. Is a minor liable for his torts? Is his father? A minor is liable for his own torts, because liability in tort does not depend on capacity to contract. Two qualifications apply: where the tort requires a particular state of mind a very young child may be incapable of forming it, and a claim that is in substance on a contract the minor could not make cannot be reframed as a tort. The father is not liable merely because he is the father. He becomes liable where the child was acting as his servant or agent, or where his own negligence caused the harm, for example by entrusting a dangerous thing to a child too young to handle it.

4. Explain the extent of the State's liability in tort with reference to article 300. Article 300(1) provides that the Government of India and of a State may sue and be sued in like cases as the Dominion of India and the corresponding Provinces might have done. In State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, the Supreme Court held that the words "in like cases" refer back through the Government of India Acts to the liability of the East India Company, and that within the scope of employment the State is liable like any other employer; the State was held liable for a pedestrian killed by a Government jeep. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, the Court held that the powers to arrest, search and seize are sovereign powers and that no claim lay against the State for gold misappropriated from a police malkhana. That division was narrowed in N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, where the Court held that sovereign immunity has no place in a modern welfare State.