Bharatiya Sakshya Adhiniyam, 2023
Section 127
Judges and Magistrates
No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. Illustrations.
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
Why this exists
This rule protects the independence and dignity of the judiciary. If judges and magistrates could be routinely dragged into other proceedings to explain or defend their courtroom decisions and reasoning, it would undermine judicial authority, invite harassment through litigation, and discourage frank, fearless decision-making. At the same time, the law does not give judges blanket immunity - if something relevant happened in their presence that is not about their judicial role or reasoning (like witnessing a crime), they can still be examined like any other witness. The provision carries forward Section 121 of the Indian Evidence Act, 1872 into the Bharatiya Sakshya Adhiniyam, 2023 without substantive change.
How courts read it
Indian courts have historically read this provision narrowly in favor of protecting judicial conduct and reasoning, but have distinguished this from a judge's personal knowledge of unrelated facts. Courts have clarified that the privilege belongs to the judicial function, not the individual, so a judge can still be examined about things they witnessed that fall outside their official judicial acts, as the third illustration shows. The 'special order of a superior court' requirement has been treated as a real safeguard, not a formality, meant to prevent lower courts or private litigants from casually summoning judges to justify their rulings.
Common misconceptions
- Myth: Judges and magistrates can never be questioned about anything that happened during a trial they presided over.
Fact: They can be questioned about events they witnessed that are unrelated to their judicial reasoning or conduct, such as an incident happening in the courtroom. - Myth: This provision gives judges complete legal immunity from ever being examined.
Fact: A superior court can specially order a judge or magistrate to answer questions about their own conduct in court if circumstances require it.