When is a Judge or Magistrate Disqualified from trying a Case?

Personal Interest of a judge or Magistrate:

It is provided in Section 479 of the code of Criminal Procedure 1973 that no Judge or Magistrate shall, except with the permission of the Hon’ble court to which an appeal lies from his Hon’ble Court, Try or commit for trial any case to or in which he is a party or personally interested and no Judge or Magistrate shall hear an appeal any judgement or order passed or made by himself.

A Judge or Judicial or Executive Magistrate shall not be deemed to be a party to, or personally interested in any case by reason only that he is concerned therein in public capacity, or by reason only that he has observed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred and made an inquiry or investigation in connection with the particular case.

The Supreme Court’s judgment in 1997 in Visakha v. State of Rajasthan is a juncture in its history.

In the absence of any domestic or national law occupying a field providing for measures to check the evils of sexual harassment at all workplaces, the Supreme Court invoked its extraordinary powers under Article 32 of our constitution to lay down a new law to fill the vacuum. In so doing, the judges laid emphasis on Fundamental Rights under Articles 14, 15, 19(1)(g) and 21 of the Constitution together with International Conventions and Article 51C and 253 of the Constitution. They emphasized ourselves guarantee of gender equality and right to work with proper human dignity amongst others.

The judges relied upon the Beijing Declaration of 1995 where the Chief Justices of Asia and Pacific had inter-alia declared that amongst the objectives and functions of the judiciary is ‘to ensure that all persons are able to live securely under the Rule of Law’. Relying upon ‘Convention on Elimination of all Forms of Discrimination against Women’ the judges referred to the rights of women and in particular, the right to work, as an inalienable right of all human beings and to ‘the right to protection of health and to safety in working conditions including the safeguarding of the function of reproduction’.

Accordingly they declared that In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly can say against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions or organization, until a proper and effective legislation is enacted for that purpose.

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