Saturday, 11 March 2017

Srishti Gandhi

Tortious liability of state

There have been several laws, written as well as unwritten, to hold the State liable for the acts of omission and commission committed by its servants. Tortious liability is the liability of the state for the tortious acts of its servants. Iy make the state liable for its acts and brings it before the court so that a claim for non liquidated damages can be sought. This liability is a part of the law of torts. Like many other laws, Law of Torts has also being brought into our country by the Britishers. This now now stands which has undergone several modifications in the constitutional law as well as local law, now stands varied.

'The King can do no wrong' is an English maxim that provides absolute immunity to the Crown and states that the Crown can not and will not be sued for torts of its servants in course of employment. This maxim however was never accepted in our country. Even the East India Company, which came to India as traders and later became rulers, did not accept this.

The East India Company which was a delegate of the Crown, had its political authority and power regulated by certain legislations passed by the British Parliament. The Crown then directly took over the reigns of our country in 1858. the extent of tortious liability of the State was always a matter of dispute before the Courts in the pre-independence period. The liability of the State was dependent on various factors like the nature of the act, the category of power in which it was placed viz sovereign or non-sovereign power. The Courts faced difficulties in resolving the disputes as the Sovereign power of the state were never clearly defined nor a clear distinction was made between the sovereign and the non-sovereign powers of the state. In cases pertaining to state liability, the state pleaded not guilty by using the plank of sovereign powers.

During the times of East India Company, the first judicial interpretation of State liability was made in John Stuart's case, 1775. For the first time, it was held that the Governor General in Council had no immunity from Court's jurisdiction in cases involving dismissal of Government servants. Further, in Moodaly v. The East India Company 1775 (1 Bro-CC 469) the Privy Council opined that in India, the Common law doctrine of sovereign immunity was not applicable. After the British crown assumed the sovereign powers in 1858, the first enactment related to the administration of Country was enacted. It was known as Government of India Act 1858. It went on to be replaced by the Government of India Act 1915 and 1935. For the first time, the tortiuous liability of State in Statutory terms was spelled out in Sec. 58 of the Act of 1858, the provisions of which remained on Statute Book in subsequent Government of India Acts. It provide the provisions for the Secretary of State to sue or may be sued. It read as follows, "The Secretary of State in Council may sue and be sued as well in India as in England in the name of the Secretary of State in Council as a body corporate and all persons and bodies politic shall and may have and take the same suits remedies and proceedings legal and equitable against the Secretary of State in Council of India as they could have done against the said company, and the property and effects hereby vested in Her Majesty for the purposes of the Government of India acquired for the said purpose shall be subject and liable to the same judgements and executions as those vested in the said Company would have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company".

Sec. 68 of the said Act, however protected members of the council from personal liability. The Constitution of India in its Article 361 exempts the President and the Governors from personal liability.

Oriental Steam Navigation v. Secretary to the State of India (Bombay High Court Reports Vol. V, 1868-69) Appendix I was a leading case under Sec. 58 of the Government of India Act 1858. in this case, the Calcutta High Court held that there is a big and clear distinction between acts done by the public servants in the delegated exercise of sovereign powers and acts done by them in the conduct of other activities. The Court further held that the East India Company were not sovereign. It also drew distinction between sovereign acts in respect of which State was not liable and the other category i.e. non sovereign in respect of which the State can be made liable. In the said case, an accident happened in which the horse of a carriage hired by an individual was injured due to negligence of a servant of Government working in Dockyard. however, the Bombay and Madras High Courts did not agree with the views of the Calcutta High Court.. In Secretary of State v. Hari Bhanjj (1882) ILR Madras 273, The Madras High Court held that immunity of East India Company extended only to "Acts of the State". Our Constitution of India contains two Articles viz Article 294 and Article 300 which contain explicit and implicit provisions regarding tortious liability of State and suit against it. Both the above mentioned Articles come under Chapter III of "Part XII of the Constitution of India which is headed as Property Contracts. Rights, Liabilities Obligations and Suits." Article 294 (b) of the Constitution of India provides that the liability of Union or State Government may arise out of any contract or otherwise. The word "otherwise" includes various liabilities which automatically make tortious liability a part of it, the State can sue or be sued as juristic personality under the provisions of Article 300 of the Constitution of India. It reads as under: "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 and may, subject to any provisions 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."

The Supreme Court of India, in the first and leading case regarding State's tortious liability viz. State of Rajasthan v. Mrs. Vidyavati, AIR 1962 SC 937 dismissed the view that scope of Article 300 was limited. It held that the scope of Article 300 is not limited. The Court further held that there can be no difficulty in holding the State liable for tort in respect of a tortious act committed by its servant within the scope of his employment and wholly dissociated from the exercise of sovereign powers as any other employer. Sovereign functions were specified as defence act of State and other like operatives. Hence, it was made clear that ambit of Article 300 included tortious liability of the State and its scope is not limited to contractual liability only.

The case of Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663, which arose under the Essential Commodities Act, brought up many previous cases for consideration before the Supreme Court. The Court observed that the welfare state functions of State are not only defence or administration of Justice or maintaining law and order which are sovereign functions of State, but rather these welfare functions intend to regulate and govern activities of the public in almost every sphere: educational, commercial, social, economic, political or even marital. The rigid demarcation of sovereign and non-sovereign functions were against modern jurisprudential thinking and predated. The Court observed that a fair distinction between sovereign and non sovereign powers depends upon the nature of power and its exercise. One of the tests to determine if the function is sovereign in nature is to see whether the State is answerable for such actions in Courts of law. For instance, in matters such as making peace or declaring war, security, defence, raising armed forces, foreign affairs are functions which are indicative of external sovereignty and as such they are not amenable to the civil courts.

 In the rather recent decision of Achut Rao Hari Bhau Kodwa and another v. State of Maharashtra and others, (1996) 2 SCC 634, the negligence of Government Doctor resulted in death of patients and the Government doctor and the State were held liable. It was further held that maintaining of hospitals not being exclusive function of the Government, it would not be an act of sovereign power and as such no immunity can be claimed from the liability for the tortious acts of its hospital employees. Now, the sovereignty in India vests in the people who have given a written constitution with certain aims and objects enshrined in the Preamble.

The claim of immunity now survives in maintenance of law and order, defence, administration of justice, repression of crime etc. as these are the primary and inalienable functions of Government regulated by a constitution.

In Dr. M. Ismail Farooqui v. Union of India, AIR 1995 se 605, the Supreme Court held that the acquisition of temple and mosque is covered in maintenance of law and order and is also covered in the sovereign functions of State. In the matter of payment of compensation for damage caused to a person by the wrongful act of a Government servant, there is some deviation from the traditional concept even if no specific damage is alleged. In view of the changing laws and the Constitutional mandates in our country, the liability of the State has gone beyond the traditional principles. Carelessness of the employees and Negligence are words of great importance and the State would be held liable to pay compensation to the aggrieved persons because of the acts of negligence and carelessness done by its employees during the course of their employment. Even if an employee is doing an unauthorized but permitted act, the employer is liable because such acts were done by the employee within the scope of his employment. A master is liable even for acts not authorised by him if the same acts can be connected with the acts so authorized by him. The Constitution of India, in its Article 21, forbids State to deprive a person of his life and liberty except in accordance with a procedure established by law.

Under Article 32, the defence of sovereign immunity has not only been made completely inapplicable but has also overthrown it altogether as it cannot go with constitutionally guaranteed rights. Keeping this complete ouster of sovereign immunity in regard to fundamental rights particularly Article 21 in mind, the right to award money compensation for violation of the law is justified. The Union and State governments would be liable for tortious acts committed by their employees in the course of employment for violation of Article 21. The Supreme Court has awarded monetary compensation in many cases. In the leading case of Nibati Behera v. State of Orissa, AIR 1993 SC 1960, the principles on the liability of the State in case of payment of damages were spelled out. A clear distinction was also made between this liability and the liability in law for the payment of compensation for the tort so committed. Moreover, if no other feasible mode of redress is available, the Court would award monetary compensation for breach of fundamental rights by State or its employees based on the principle of strict liability.

There have been laws written and unwritten in the Indian constitution for the acts of commission and omission committed by the state servants. Tortuous liability is the liability of the state for the tortuous acts of its servants. It makes the state liable for the acts done voluntarily or involuntarily by its servant and brings it before courts so that a claim for non liquidated damages can be demanded. We don't have law of torts in India, it traveled through British to India and now stands varied. King can do no wrong is the English maxim about the absolute immunity of the crown. But this absolute immunity was never accepted in India. In law of torts king could not be sued for the acts of his servants. This was not accepted in India even during the rule of east India company. East India company came to India as traders and later became the rulers.

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