Wrongful, conduct of such character as to subject the actor to civil liability under tort law.
In order to establish that a particular act was tortious, a plaintiff must prove that an actionable wrong existed and that damages ensued from that wrong. The state is a legal entity and not a living entity; it has to act through human agency through its servants. The liability of the state for the tortious acts of its servant that has to be considered. In other words, it refers to when the state can be held vicarious liable for the wrongs committed by its servants.
The Vicarious Liability refers to a situation where one person is held liable for act or omission of other person. Winfield explains the doctrine of vicarious liability thus. The expression ‘vicarious liability’ signifies the liability which A may incur to C for damages caused to C by the negligence or the tort of B. It is not necessary that A shall not have participated in any way in the commission of the tort nor that duty owed in law by A to C shall have been broken. The master may be held liable for the torts committed by his servant in the course of employment.
The doctrine of vicarious liability is base on two maxims:
(i) Respondent superior (let the principal be liable) and
(ii) Qui facit per alium facit per se (he who does an act through another does it himself).
As early as in 1839 , Lord Brougham observed: “The reason that I am liable is this, by employing him I set the whole thing in motion and what he does, being done before my benefit and under my direction, I am responsible for the consequences of doing it.”
The Doctrine of Vicarious Liability is based on ‘social convenience and rough justice’.
English law: – in England, under common law, absolute immunity of the Crown was accepted could not be sued in tort for wrongs committed by its servants in their employment. The rule was based upon the well known maxim “the King can do no wrong”. In 1863, in Tobin v. R. the court observed “if the Crown were liable in tort, the principle (the King can do no wrong) would have seemed meaningless”. But with the increase of governmental functions, the immunity afforded to the Crown in tortuous liability proved to be incompatible with the demands of justice.
In Adams v. Naylor the Dicey gave an absurd example. “If the Queen were herself to shoot the P.M through the head, no court in England could take cognizance of act”. The meaning of maxim would mean “king has no legal power to do wrongs.” But the English Law never succeeded in distinguishing between the King’s two capacities- personal political. The time had come to abolish the general immunity of the crown in tort and in 1947 the Crown Proceeding Act was enacted. This Act placed the Government in the same position as a private individual.
So far as Indian law is concerned, the maxim ‘the king can do no wrong’ was never fully accepted. Absolute immunity of the Government was not recognised in the Indian legal system prior to the commencement of Constitution and in a number of cases the Government was held liable for tortuous acts of its servants.
b. Constitutional Provision
Under Article 294 (4) of the constitution, the liability of Union Government or a state Government may arise ‘out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respects of tortuous acts also. Under article 300 (1), the extent of such liability is fixed. It provides that the liability of the Union of India or State Government will be same as that of Dominion of India and the Provision before the commencement of the Constitution.
c. Sovereign and Non-sovereign functions
(a) Before commencement of Constitution
The English law with regard to immunity of the Government for tortuous acts of its servants is partly accepted in India. The High Court observed: as a general rule this is true, for it is an attribute of sovereignty and universal law that a state cannot be used in its own courts without its consent.’ Thus a distinction is sought to be made between ‘sovereign functions’ and ‘non-sovereign functions’ of the state. The State is not liable in tort.
d. After commencement of Constitution
In state of Rajasthan v. Vidhyawati , a jeep was owned by the Rajasthan for the official use of the collector of a district. The jeep driver bringing back the workshop after repairs. By negligent driving of jeep a pedestrian was knocked down. He died and his wife sued the driver and the state for damages. A constitution Bench of Supreme Court held the State vicarious liable for the rash and negligent act of the driver.
The court held that the rule of immunity based on the English law had no validity in India. After the establishment of the Republican form of Government under the Constitution there was no justification in principle or in public interests that the state should not held liable for vicariously for the tortuous acts of its servants.
In Kasturi lal v. State of U.P. a certainly of gold and silver was attached by police authorities from one R on suspicion that was stolen property. It was kept in Government malkhana which was in the custody of Head Constable. The Head constable misappropriated the court. A suit for damages was filed by R against the state for the loss caused to him by the negligence of police authorities of the state. The Supreme Court held that the state was not liable police authorities were exercising ‘sovereign functions’. The Constitution Bench of court, Gajendragadkar, C.J observed:
“If a tortuous act is committed by the public servant and it gives rise to claim for damages, the question to ask is: Was the tortuous act committed by the Public servant in discharge of stuatory functions or the delegation of sovereign powers of the state to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortuous act will not lie. On the other hand, if tortuous act has been committed by a public servant in discharging of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie.”
Distinguishing Vidyawati, the court held that: ‘the employment of a driver to drive the jeep car for the use of a civil servant is itself an activity which is not connected in any manner with the sovereign power of state at all. It appears that the Supreme Court itself was satisfied that kasturi lal did not lay down correct proposition of law and in these circumstances, in subsequent case either the court did not refer Kasturi lal at all or describing it as ‘not relevant’.
The Court also stated that distinction between sovereign and non-sovereign power no more exists. It all depends on the nature of the power and manner of its exercise. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The functions state as “sovereign and non-sovereign” or ‘governmental and non-governmental’ is not sound. It is contrary to modern jurisprudence thinking. Since the doctrine has become outdated and sovereignty now vests in the people, the state cannot claim any immunity and if a suit is maintainable against the officer personally, there is no reason to hold that it would not be maintainable against the state.
Whether State Is Bound By Statute:
State performs not only the ‘law and order’ functions, but as a ‘Welfare State’, it performs many non-sovereign and commercial activities. The important question therefore arises, whether the state is subject to same rights and liabilities which the statute has imposed on other individuals. In others words whether the state is bound by a statute and if it is, to what extent the provision of statute can be enforced against the state.
The general principles of common law, ‘no statute binds the Crown unless the Crown was expressly named. In England the Crown enjoys the common law privilege and it is not bound by a statute, unless ‘a clear intention from statute itself or from the express terms of the Crown Proceedings Act, 1947. The maxim ‘King can do no wrong’. In theory, it is inconvincible that the statute made by the crown for its subjects could bind the Crown itself.
The principle of common law was accepted in India and applied in some cases. In Provinces of Bombay v. Municipal Corp. of the city Bombay is the leading case before independence. The Corporation of Bombay wanted to lay water mains through land which belonged to the Government. The land was acquired by the Crown under the provision of Municipal Act. The municipality had power ‘to carry water mains within or without the city.’ The question was whether the Crown was bound by the statute held that the Government was not bound by the statute.
In Superintendent and Remembrance of Legal affairs W.B v. Corp. Of Calcutta (Corporation of Calcutta II) , the state was carrying on the trade of a daily market without obtaining a license as required by the relevant statute. The Corporation filed a complaint against the state. The Supreme Court was called to decide the correctness or aforesaid decision in Corporation of Calcutta I. By a majority of 8:1, the decision in Corporation of Calcutta I was overruled and it was held that the state was bound by the Statute.
Article 300 of India Constitution :
(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substitute for the Dominion in those proceedings.
Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.
An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India a State may sue and be sued by the name of the State.
The Second part provides, inter alia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted. The Third part provides that it would be competent to the Parliament or the legislature of State to make appropriate provisions in regard to the topic covered by Article 300(1).
The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O Navigation Company V. Secretary of State for India , in this case a piece of iron funnel carried by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State for India- in council for the negligence of the servants employed by the Government of India. The Supreme Court delivered a very learned judgment through the Chief Justice. The Supreme Court at Calcutta, CJ held that “the Government will be liable for the actions done by its servants while doing non-sovereign functions but it won’t be liable for injuries caused while pursuing sovereign functions.
Similarly in Nobin Chunder Dey V. Secretary of State , the Calcutta High Court gave full effect to the remarks in rejecting the plaintiff’s plea for damage against wrongful refusal to him of a license to sell certain excisable liquors and drugs resulting in the closure of his business on the ground that grant or refusal of a license was a sovereign function lying beyond the reach of the tortuous liability of the State. Since then, the distinction between the sovereign and non-sovereign functions of the State has been the basis of a number of judicial pronouncements.
On the other hand, in Secretary of State V. Hari Bhanji, the court has denied any distinction between sovereign and non-sovereign functions and held that where an act is done under the sanction of municipal law and in the exercise of powers conferred by that law, the fact that it is done in the exercise of sovereign function and is not an act which could possibly be done by a private individual does not oust its justifiability. In this state of affairs, the Rajasthan High Court after holding the State of Rajasthan liable in tort certified the case fit to be taken to the Supreme Court in State of Rajasthan V. Ms. Vidyawati. In this case, a Government Jeep knocked down a pedestrian who died in consequence of accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign Immunity, the Court ruled that the State is liable for the tort or wrongs committed by its officials. In this case distinction between sovereign and non-sovereign functions was disregarded, but the court observed that the State would not be responsible for the ‘Act of State’ under Article 300 of the Constitution. The Supreme Court, in this case, added that in modern times, the State has welfare and socialistic functions and the defence of State immunity based on the old feudalistic notions of justice cannot be sustained.
Again, in Kasturi Lal V. State of U.P, the Apex court has adopted a pro-people approach. In this case the Police seized some suspected stolen gold from Plaintiff. Later, it was misappropriated by Head Constable of the Police Station who reportedly fled to Pakistan with the Gold. The Supreme Court held that the State is not liable as impugned act is a sovereign activity. Thus, the court not only reversed what appeared to be the legal position after Vidyawati case but also reinforced an additional qualification to the State liability by referring to the statutory powers; in a way holding that State is not liable for any torts committed by its servants in the exercise of statutory powers.
Doctrine of Public Accountability:
The concept of public accountability is a matter of vital public concern. All the three organs of the government- legislature, executive and judiciary are subject to public accountability.
a. Doctrine Explained:
It is settled law that all discretionary powers must be exercised reasonably and in larger public interest. In Henley v. Lyme Corporation Best C.J stated: – “Now I take it to be perfectly clear, that if a public officer, abuses his office, either by an act of omission or commission and the consequence of that is an injury to an individual an action may be maintained against such public officer.”
In various cases, the Supreme Court has applied the above principle by granting appropriate relief to aggrieved parties or by directing the defaulter to pay damages, compensation or costs to the person who has suffered. Very recently in Arvind datttaraya v. State of Maharashtra, the Supreme Court set aside order of transfer of a public officer observing that the action was not taken in public interests but was a case of victimized of an honest officer. ‘it is most unfortunate that the Government demoralize the officers who discharge their honestly and diligently and brings the persons indulging in black marketing and contra banding liquor.”
b. Personal liability: -A breach of duty gives rise in public law to liability which is known as “misfeasance in public office”. Exercise of power by minister and public officers must be for public goods and to achieve welfare of public at large. Wherever there is abuse of power by an individual, he can be held liable.
In Common Cause, a Registred Society v. Union of India the petroleum Minister made allotment of petrol pumps arbitrarily in favour of his relatives and friends. Quashing the action, the Supreme Court directed the Minister to fifty lakh rupees as exemplary damages to public exchequer and fifty thousand rupees towards costs.
In is submitted that in Lucknow development Authority v. M.K Gupta, the Supreme Court rightly stated: – When the court directs the payment of damages or compensation against the state the ultimate sufferer is the common man. It is the ‘tax payers’ money which is paid for inaction of those who are entrusted under the act to discharge those who are under the act to discharge their duties in accordance with law. It is therefore necessary that the Commission when it is satisfied that a complaint is entitled to compensation mental agony or oppression, which finding should be recorded carefully on material and convincing circumstance and not lightly, it further direct the department concerned to pay the amount to the complaint from the public fund immediately. But at the same time, personal liability should be imposed on erring officers only after giving notice and affording reasonable opportunity of hearing.
C. Judicial accountability:
The doctrine of public accountability applies to judiciary as well. An essential requirement of justice is that justice is that it should be dispensed as quickly as possible. It has been rightly said: “Justice delayed is justice is justice denied.” Delay in disposal of cases can be recommended. Whereas comments and criticism of judicial functioning on matters of principles, healthy aids for interpretation and improvement, the functioning of the court in relation to a particular proceeding is not permissible.
Conclusion: All actions of state and its instrumentalities must be toward the objectives set out in the constitution. Every step of government should be in the direction of democratic traditions, social and economic development and public welfare. The constitutional court exercises power of judicial review with constraint to ensure that the authorities on whom such power is entrusted under the rule of law exercise is honestly, objectively and for the purpose for which it is intended to be exercised.
Doctrine of Estoppels:
The doctrine of promissory or equitable estoppels is well settled in administrative law. Wade states that: “The basic principle of estoppels is that a person who by some statement or representation of facts causes another to act his detriment in reliance on the earth of it is not allowed to deny, even though it is wrong. “Justices here prevails over truth.” Garner states that: “A person may be precluded (estoppel) in legal proceedings from denying the existence of some state of facts the existence of which he has previously asserted, intending the other party to the proceedings to rely on the assertion.
b. Nature and Scope:-
Estoppel is often described a rule of evidence, but more correctly it is a principle of law. Though commonly named as promissory estoppels, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is equity. It is invoked and applied to aid the law in administration of justice. But for it great many injustices may have been perpetrated.
The above principle is embodied in section 115 of the Indian Evidence Act, 1872. It provides: “when one person by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” The illustration section read as under:
“A, intentionally and falsely leads B to believe that certain lands belong to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that at time of sale he had no title. He must not allow prove his want of his title.”
d. Leading Cases
In Robertson v. Minister of Pension, R, army officer claimed a disablement on account of war injury. The War Officer accepted his disability as attributable to military service. Relying on this assurance R did not take any steps which otherwise he would have taken to support his claim. The Ministry refused to grant the pension. The court held the Ministry liable.
In Union of India v. Anglo Afghan Agencies, the historic case, ‘Export Promotion Scheme was published by7 the Textile Commissioner. It was provided in the said scheme that the exporters will be entitled to import raw material up to 100 percent of the value of goods the exports. Relying on this representation, the petitioner exported goods rupees 5 lakhs. The Textile commissioner did not grant the import certificate for the full amount of goods exported. No opportunity of being heard was given to the petitioner. The Supreme Court held that the Government was bound to carry out the obligations undertaken in the Scheme. Even though the scheme was merely executive in nature and even though the scheme was executive in nature and even though the promise was not recorded in the form of formal contract a required by the article 299(1) of the Constitution, still it was open to a party who had acted on a representation made by the Government to claim that the Government was bound to carry out the promise made by it.
In Motilal Padampat Sugar Mills v. State of U.P in that case, the Government of Uttar Pradesh announced that new industrial units in the State would be granted exemption from payment of sales tax for period of three years. The petitioner approached to the High Court but failed. Applying the Supreme Court said, Bhagwati, J sated:-
“It is elementary that in a republic governed by the rule of law, no one high or low, is above law. Every one is the subjects to the law as fully and completely any other or the Government is no exception. It indeed the pride of constitutional democracy and rule of law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law claim immunity from the doctrine of promissory estoppel.”
In Jit Ram v. State of Haryana the Municipal Committee of Bahadurgarh had established a mandi at fateh. It was resolved by the municipality in 1916 that purchase of the plot in the mandi. The municipality decided to levy octori duty and the said action challenged inter alia on the ground of estoppel. Virtually dissenting with Motilal Sugar Mills, the court rejected the contention holding that the doctrine of estoppel could not be invoked.
Regarding Jit Ram, Bhagwati, and C.J. rightly observed: “we find it difficult to understand how a Bench of two Judges in Jit Ram Case could possibly overturn or disagree with what was said by another bench of two judges in Motilal Sugar Mills case. If two judges in Jit Ram case found themselves unable to agree with the law laid down in Motilal Sugar case, they could have referred Jit Ram case to a larger Bench, but we do not think it was right on their part to express their disagreement with enunciation of the law by a coordinate Bench of the same court in Motilal Sugar Mills.”
The court further observed that the law laid down in Motilal Sugar Mills was correct and did not approve the observations of Jit Ram to the extent that they were contrary to earlier decision.
e. Estoppel against statute:-
The doctrine cannot be used against or in favour of the administration so as to give de facto validity to ultra vires administrative acts.
In Howell v. Falmouth Boat Construction Co. the relevant statute required a license to do ship repair work. An assurance was given by the designated official that no such license was necessary. The plaintiff sued for payment of work done by him. It was argued that the workdays illegal as no written license was obtained by him. The Court of Appeal decided in favour of the plaintiff on the basis of the doctrine estoppels. Reversing the judgment of Lord Denning and dismissing the claim of the plaintiff, the House of Lords pronounced:
“It is certain that neither a Minister nor any subordinate officer of the Crown can by any conduct or representation bar the Crown from enforcing a statutory prohibition or from prosecuting for its breach.”
In Exercise Commissioner v. Ram kumar, the Supreme Court held that held sale of country liquor which had been exempted from sales tax at the time auction license could not operate as estoppels against the Government. The Supreme Court observed:
“It is now well settled by a certain catena of decision that there can be no question of estoppels against the Government in the exercise of its legislative, sovereign or executive powers.”
f. Estoppel and public policy:-
The doctrine is equitable and, therefore, it must yield to equity and can be invoked in the larger public interest. If a promise or agreement is opposed to public policy, it cannot be enforced. Example, a right to reservation to promote interests of certain backward classes. If a person who does not belong to that class obtains false certificate and gets an employment, and on coming to know about the true facts, has been removed from service, he cannot invoke this doctrine.
g. Estoppel and Public Interest:-
The doctrine of promissory estoppel is equitable and it cannot be invoked against public interest. It does not apply if the results to be achieved are against public goods. The doctrine must yield to equity.
In Kasinka Trading Co. v. Union of India, a notification was issued under the Customs Act, 1962 granting exemption from payment of customs duty on certain raw material imported from foreign country. The notification was issued in public interest and it was to remain in force for two years. However, the exemption was withdrawn before the expiry of period again in public interest. The Supreme Court upheld the action.
The principle lay down in above the Shrijee Sales Corpn. v. Union of India, the Supreme Court stated: “Once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases a period has been indicated.”
NEED FOR LEGISLATION :
The present state of the law-
The present state of the law relating to liability of the State in tort in India, it is apparent that the law is neither just in its substance, nor satisfactory in its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of the exercise of sovereign functions – a concept which itself carries a flavour of autocracy and high-handedness. One would have thought that if the State exists for the people, this ought not to be the position in law. A political organisation which is set up to protect its citizens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather them denounce such liability. Exceptions can be made for exceptional cases – but the exceptions should be confined to genuinely extraordinary situations.
Article 300, a weak foundation-
Keeping aside the injustice, in point of substance, of the existing law, there are several other serious defects in the present position. The foundation of the present law is article 300 of the Constitution. Its language necessarily takes one, through successive steps of (what may be called) tracing back of the genealogy of the law, to a moment of time residing in the 19th Century – that to a moment when the country was governed or dominated by alien rulers. The law is, in effect, based upon archaic provisions. In this sense, article 300 has turned out to be a weak foundation, on which to build up an edifice of the law on the subject.
The test of corresponding state or province-
In another respect also, a test resting on article 300 has become unworkable. In so far as the article incorporates the test of the law of “corresponding Province” or “corresponding Indian State”, the test has become practically unworkable, for the following reasons.
(a) The political map of India, as drawn in 1950, has been re-drawn again and again in the post – 1950 period. The process began in 1953. It assumed greater importance in 1956, as a result of the enactment of the States Reorganisation Act. It was continued when the (erstwhile) State of Bombay was bifurcated. And the process of re-drawing the boundaries has not yet ended. A time will come, when only an assiduous historical researcher will be able to locate the “corresponding Province” or Indian State. The power of the President under article 366(7) of the Constitution (to determine the corresponding State) will itself be difficult to exercise.
(b) The areas comprised within the princely States of India present yet another difficulty. These States (as is well known) had varying grades of political development. While some of them had well-established systems of law reporting, the same could not be said of the rest. Thus, in the absence of availability of satisfactory material, having its source either in statute or in case law, it is difficult to find out what was the legal position in a particular Indian State, on the subject under consideration.
Take, for example, the picturesque city of Udaipur. Before 1950, it formed part of the Rajasthan Union, which had acceded to the Indian Dominion. But the Rajasthan was structured (through the process of “Covenant) out of the Covenanting States of (former) Rajasthan, Jaipur, Jodhpur Bikaner, Matsya, Union etc. The former Rajasthan Union itself had been formed, through a similar process of Covenant, out of the merger of several Rajput States (Mewar, Kotah, Dungarpur etc.). Hence, if a tort is committed today, in Udaipur, by a State Government officer, and the question arises of the liability of the State Government for the same, it would become necessary to examine the constitutional law governing the (erstwhile) State of Mewar (with Udaipur as its capital). Incidentally, for a short while, that State (Mewar) happened to have a written Constitution – happily, a Constitution guaranteeing fundamental rights. But very few persons can, at the present day, manage to have access to a copy of that Constitution or to the rulings of the High Court of Mewar on that Constitution.
(c) Thus, the law in the areas concerned becomes inaccessible, not only to the common man, but (perhaps) also to an ordinary lawyer, who does not have an army of research scholars under his command.
Post Constitution decisions –
It keeps one’s researches limited strictly to post-Constitution decisions, the picture is equally confusing. There is a manifest conflict of judicial decisions. In theory, the dividing line between sovereign and non-sovereign functions is the criterion of liability. But there are serious disparities in the stance adopted by various courts in this regard. Courts themselves have expressed their uneasiness about this test and about the difficulties in its practical application particularly in Kasturi Lal case and N. Nagendra Rao case.
Need for certainty and codification –
The Commission is strongly of the view, that this is one area of the law where the need for a clear statement of the law in a statutory form is urgent and undeniable Jurists may hold different views as to the relative merits of codified and un-codified law. But this is definitely an area where a statutory formulation is badly needed, in the light of the considerations set out in the preceding paragraphs. We consider it desirable that the general should be reduced to particular. Abstract doctrines must be converted into concrete propositions; and the law should present itself in legislation that is at least easily accessible and conveniently readable. So far as the subject under consideration is concerned, the legal maxim. Ubi jus incertum, ibi jus nullum (where the law is uncertain, there is no law), can be applied, with great force.
Role of the State tort law :
Role of the State tort law in any modern society, interactions between the State and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the tort law figures much more frequently, than any other branch of law.
In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of the power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a legislature may be bad or may be ultra vires, but, since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law. It is in (the) public interest for acts performed by the State, either in its legislative or executive capacity, it should not be answerable in torts. It would be in conflict with even modern notions of sovereignty.
The modern thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on any other juristic legal entity. It is contrary to modern jurisprudential thinking. The need of State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for (the) sake of society, the people, the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken”.
The Court linked together the State and the officers: “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”
Protection Clauses :
The proposal to deal with what can be called “protection clauses” – that is to say, statutory provisions which, in substance, provide that a suit etc. shall not lie against the Government for anything which is done or intended to be done under a particular enactment. In order to deal with the relevance of such protection clauses to the subject matter of the present Report, we would, like to quote a sample. This is how section 84 of the Information Technology Act, 2000 (21 of 2000), reads:
“84. Protection of action taken in good faith
No suit, prosecution or legal proceeding shall lie against the Central Government, the Controller or any person acting on behalf of him, the presiding officer, adjudicating officers and staff o the Cyber Appellate Tribunal, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or regulation or order made thereunder”.
Another model – a simpler one – is supplied by section 37 of the Drugs and Cosmetics Act, 1940, in these terms: “37. Protection of taken in good faith
No suit, prosecution or other legal proceeding shall lie against any person for anything which is on good faith done or intended done under this Act.
Thus, section 88 of the Chit Funds Act, 1982, provides as under: “88. Protection of action taken under the Act
No suit, prosecution or other legal proceeding shall lie against the State Government, the Registrar or other officers of the State Government or the Reserve Bank or any of its officers exercising any powers or discharging any functions under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made thereunder”.
Section 28, Consumer Protection Act, 1986, provides as under: “28. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the members of the District Forum, or the State Commission or the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission or executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made thereunder”.
Section 22 of the Insurance (Regulation and Development) Act, 1999 (41 of 1999), provides as under: “22. Protection of action taken in good faith
No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Central Government or any member, officer or other employee of the Authority for anything which is in good faith done or intended to be done under this Act or rules or regulations made thereunder”.
Section 68 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), provides as under: “69. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the Central Government or a State Government or any officer of the Central Government or of the State Government or any person exercing any powers or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule or order made thereunder”
Section 38 of Protection of Human Right Act, 1993 (10 of 1993) provides as under:
“38. Protection of action taken in good faith
No suit or other legal proceedings shall lie against the Central Government, State Government, State Commission or any member thereof or any person acting under the direction either of the Central Government, State Government, Commission or the State Commission, in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made there under or in respect of the publication, by or under the authority of the Central Government, State Government, the Commission or the State Commission, of any report, paper or proceedings”.
The usual remedies are damages and/or an injunction. In some instances, the tort may be waived, and the defendant required accounting for profits gained through the wrong. The law of tort, as well as protecting individual rights to property damage and personal injury caused by negligence, also protects other interests, such as reputation (defamation), title to property (trespass), enjoyment to property (nuisance), and commercial interests (conspiracy).
The landmark judgement was Nilabati Behra V. State of Orissa awarding compensation to the petitioner for the death of her son in police custody, the court held that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of fundamental right is distinct from and in addition to the remedy in private law damages for tort.
The court expressly held that principle of sovereign immunity does not apply to the public law remedies under Article 32 and Article 226 of Indian Constitution for the enforcement of fundamental rights. Kasturi Lal is confined to private law remedies only.
In Registered Society V. Union of India and Chairman, Railway Board V. Chandrima Das cases. It was held “where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.” It opens up the possibility of development of public law torts which requires different considerations than the private law torts and which is more suitable for State liability in torts.
Crown Privilege: In every democratic society, it is importance that citizens get sufficient information and knowledge about the functioning of the Government. Democracy cannot survive without accountability to public. The very integrity of judicial system and public confidence depend on full disclosure of the facts.
(a) England: – In England, the Crown has the special previlege of withholding discloure of documents, referred to as “Crown Previlege”. It can refuse to disclose a document or to answer would be injurious to the public interests.
Statutory Provision: In India the basic principle is incorporated in section 123 of the Evidence Act, 1872, which read as-
“No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned who shall give or withhold such permission as he thinks fit.”
The section 123 confers a great advantage on the Government as inspite of non-production of relevant evidence before the court, no adverse interference can be drawn against it if the claim of privilege is upheld by the court.
Miscellanoeus Privileges of Government:
a. Under section 80 of the Code of Civil Procedure, 1908, no suit can be instituted against the government until the expiration of two months after a notice in writing has been given.
b. Under section 82 of the Code of Civil Procedure, 1908, when a decree is passed against the Union of India or a State, it shall not be executed unless it remains unsatisfied for a period of three months from the date of such decree.
c. Under article 112 of the Limitation Act, 1963, any suit by or on behalf of the Central Government or any State Government can be instituted within the period of 30 years.
In the light of above, it would be mention the observation of Apex court in N.Nagendra Rao Company V. State of AP . The honourable court noted the recommendations of the Law Commission first Report for statutory recognising the liability of the State as had been done in England through the Crown Proceedings Act, 1947 and in the USA through the Federal Torts Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present day.
It is unfortunate that the recommendation of the Law Commission made long back in 1956 and the suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state of affairs in this regard is against social justice in a welfare state. In absence of State Liability Legislation, it will be in consonance with social justice demanded by the changed conditions and the concept of welfare state that the courts will follow the recent decision of the Supreme Court rather than Kasturi Lal.