State Liability - A Cynical Reality

SUMMARY

·    The present research is - to study the various concepts and principles of a law making the state liable for such public liabilities.

·    The present article is designed to discuss the circumstances in which the state has to owe liability towards the victims of the situation.

·    The present study will attempt to investigate in to circumstances giving rise to the state liability with the help of present provisions of various statutes, judicial interpretation and jurisprudential analysis. Such investigation will help to locate and fix the places imposing liability on the state.

·   Even though more than 60 years have elapsed since the commencement of the Constitution, no law has so far been made by Parliament as contemplated by article 300.  

·    The liability of the state to pay compensation for the deprivation of the fundamental right of life and personal liberty or any other fundamental right for that matter is a new liability in public law created by the constitution and not vicarious liability or a liability in tort.

·    The state in India has to establish a separate and distinct mechanism on the line of mutatis mutandis droit administratif and counseil d’etat of French legal system, to facilitate the common man to stand against the arbitrariness and oppressiveness of government and of its officials.

  STATE LIABILITY- A CYNICAL REALITY

MAHENDRA SUBHASH KHAIRNAR,

Asst. Prof. Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad

We accept the verdict of the past until the need for change cries out loudly enough to force upon us a choice between the comforts of further inertia and the irksomeness of action.

-Judge Learned Hand

An Acquaintance

Rights being immunities denote that there is a guarantee that certain things cannot or ought not to be done to a person against his will. According to this concept, human beings, by virtue of their humanity, ought to be protected against unjust and degrading treatment. Thus the principle of the protection of human rights is derived from the concept of a man as a person and his relationship with an organized society which cannot be separated from universal human nature. Human beings are rational beings. They by virtue of their being human possess certain basic and inalienable rights.

State[1] is the system established and developed through social contract in between human beings with the aim to preserve and to protect these inherent rights. Therefore it is a legal duty of the state to protect and safeguard the interest and life of people. However one can come across the enumerable instances where the state itself or through its agency or ministers has violated these rights. Even after violating such rights of common man the state hides its responsibility in the guise of rule of sovereign immunity. However with the changing socio-economic phenomena and particularly with the development of human rights jurisprudence, the shelter of ‘sovereign immunity’ is now no more protecting the state from discharging its liability. Liability of state may occur for various wrongs done by way of wrongful act or omission committed by the state or administrative authorities or by the agencies of the state. Such wrong may either be done intentionally or negligently the state has to owe its duty towards the victims of the sufferings.

Here in this article the author wants to highlight such instances where the state directly or indirectly, intentionally or negligently breaches such inherent rights of common man. Even after violating such rights the state remains aloof from accepting legal responsibility of causing such wrongful loss to the victims. On the other hand victims of the wrong s done by the state are also unaware about heir rights and the fact that their rights have been violated by the state. Some victims may have idea that their rights have been violated but because of unavailability of proper mechanism they have to suffer such unnecessary evil. 

The present article emphasis on the need of ‘mechanism’ which will deal with the issues of violation of human rights due to the wrongful act or omission of the state or its agency or minister. Such mechanism should not be in the form of traditional judiciary, where crores of cases are pending that showing the living example of violation of people’s right to speedy justice. A mechanism like that of Droit administratif, Counseil d-Etat of the France. Droit administratif has been established to deal with the matters between the subject and the administration of the state apart from the traditional judicial system like that of Common law legal system accepted by Indiaand other commonwealth countries.

Instances

No civilized system can permit an executive to play with the people of its county and claim that it is entitled to act in any manner, as it is sovereign. The concept of public interest has changed with structural change in the society. Following are the instances where such fundamental and natural rights of human being are violated:

1.   Pendency of litigation over the years

2.   Rights of under trial prisoners

3.    Sufferings- financial, mental and health due to Red-tapism, corruption

4.    Lack of co-operation and administrative arbitrariness

5.    Accident of public transport, natural calamity

6.     Attack by Nexalites, terrorists, inefficiency of agency of state like Intelligence Bureau, Police system

These and many more such instances  in general as well as in particular has frequently violating the rights of subject i.e. right to freedom from fear. People in the country are living in the fear that their life is subject to the arbitrary and unwarranted ill-will of the state or its agencies.

Here the question for discussion is- whether the state has assumed the same liability for the operations carried on by it or by agencies?  Whether the same rule i.e. rules of absolute liability is applicable to statutory authorities /agencies? What is the justification for such liability? Often after such unfortunate incidences where number of lives suffers death, injuries in person and in property as the case may be. The state and its opposition leaders claims resignation of government on the ground of /assuming morale liability. Then the question here is why not the state should be made legally liable? Why the civil or criminal liability should not be imposed on the state or its ministers? Like that under the Crown Proceeding Act, 1 947 of England.

STRICT LIABILITY –AN ANOMALY

According to the general principles of state liability in tort, the state including public authorities and ministers enjoy no dispensation from the ordinary law of tort and contract, except in so far as statute gives it to them. Here the article emphasizes on the need to expand the scope and ambit of the state liability for tort of the state or its authorities or ministers. Unless acting within their powers, they are liable like any other person for trespass, nuisance, and negligence and so forth. This is an important aspect of the rule of law. Similarly  they are subject to the ordinary law of master and servant, by which the employer is liable for torts committed by the employee in the course of his employment, the employee also being personally liable.

Another rule which was emerged that oppressive or unconstitutional action by servant of the government could justify an award of exemplary or punitive damages i.e. damages which take into account the outrageous conduct of the defendant and not merely the actual loss to the plaintiff. Below discussed liability of statutory bodies for the negligence of their servants and agents. No statute can be expected to authorize works to be carried out negligently and hence ordinary law of liability therefore has full scope[2]. 

Lord Blackburn in Geddis v Proprietors of Bann Reservoir[3] has stated the Principle of Liability- “It is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if I be done without negligence, although it does occasion damage to anyone; but an action does lie for doing what the legislature has authorized if it be done negligently.”

Even in the absence of negligence the law of tort imposes liability on those who create situations of special danger. This strict liability is imposed b he rule in Rylands v Fletcher (1868) on ‘the person who for his own purposes brings and collects and keeps there anything likely to do mischief if it escapes’. Going one step ahead the Indian judiciary has developed principle of absolute liability[4]. Under this principle if the operation involves abnormal risk and this rule has been held to cover many situation where damage has been done by such things as chemical, fire, gas, nuclear power plant etc.

JUSTIFICATION FOR STATE LIABILITY- Indian scenario

The maxim that the King can do no wrong and the resulting rule of he Common law that the Crown has not answerable for the torts committed by its servants have never been applied in India.

Sec. 65 of the Government of India Act, 1858, which is the parent source of the law relating to the liability of the Govt. provided that; ‘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 for India as they could have done against the said company’.

This provision was continued by the succeeding Govt. of India Act, 1915, Sec. 32, Govt. of India Act, 1935 Sec. 176 (1) and is also continued by Art. 300 (1) of the Constitution of India which reads: “The Govt. of India may sue or be sued by the name of the Union of India and the Govt. of a state may sue and be sued by the name of the state and may, subject to any provisions which may be made by an 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 oft quoted authority on the construction of Sec. 65 of the 1858 Act is the decision of the Supreme Court of Calcutta rendered in 1861 in the case of Peninsular and Oriental Steam Navigation Co. v Secretary of State for India[5] In India, ever since the time of the East India Co., the sovereign has been held to be sued in tort or in contract and the common law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of govt. and one of the objectives is to establish a socialistic state with its varied industrial and other activities, employing a large army of servants, there is no justification in principle or in public interest, that the state should not be liable vicariously for the tortuous act of its servant[6].

The cases of Rudul Shah[7], lead to inference that the defense of sovereign immunity is not available when the state or its officers acting in the course of employment infringe a person’s fundamental right of life and personal liberty as guaranteed by the Art. 21 of the Constitution ofIndia.

The cases of Rudul Shah and Bhim Singh were approved by a Constitution bench of the Supreme Court in M.C. Mehta’s case[8] which laid down that compensation for violation of fundamental rights can be allowed in exceptional cases under the writ jurisdiction but normally the party aggrieved should seek his remedy by a suit in the civil court.

The supreme Court cases discussed above did not refer to the doctrine of sovereign immunity or the case of Kasturilal[9] on which the following submission was made: “It is submitted that, that case (kasturilal) even f not overruled can be distinguished on the ground that it did not consider the nature of liability of the state when there id deprivation of fundamental right.”

The liability of the state to pay compensation for the deprivation of the fundamental right of life and personal liberty (or any other fundamental right for that matter) is a new liability in public law created by the constitution and not vicarious liability or a liability in tort. For this reason this new liability is not hedged in by the limitations, including the doctrine of sovereign immunity, which ordinarily apply to state’s liability in tort. This view is strongly supported by the decision of the Privy Council in Maharaj v Attorney-General of Trinidad and Tobago[10].

The author is of the opinion that, in India too, the principle of liability seems to be emerging clearly. It can be said that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:

1. if it involves  the commission of a recognized tort such as trespass, false imprisonment or negligence;
2. if it is actuated malice, e.g. personal spite or a desire to injure for improper reasons;
3. if the authority known that it does not possess the power to take the action in question or is recklessly indifferent to its existence;
4. if the case is governed by community law and that law would allow reparation.

CONCLUDING REMARKS

French law long ago achieved this socially just result (Droit administrative)[11] which accords with the requirement of the rule of law which accords with the requirement of the rule of law that public authorities should bear the same legal responsibilities as ordinary citizens unless dispensed by statute.

Now it is clear that the state has to discharge its liability for the wrong[12], of any kind, done by it or by its servants, authorities or ministers. Art. 300 (2) of the Indian Constitution clearly speaks for the enactment of an act[13] by which legal, statutory liability can be imposed on the state for the torts committed by it or its agency. The state in India has to establish a separate and distinct mechanism on the line of mutatis mutandis droit administratif and counseil d’etat of French legal system, to facilitate the common man to stand against the arbitrariness and oppressiveness of government and of its officials. Such mechanism should have a constitutional status and therefore to amend the constitution of India accordingly. Because the constitution is the creation of ‘We the people of India’.

Here the author is of the opinion that the state should be put at par with that of a common man as far as their tortuous liability is concerned. Legal liability should be imposed on the state for causing any wrongful loss by way of act or omission done by the state, its agency or authorities, without giving any protection under the rule of sovereign immunity. The aim of this is to make the state responsible, accountable and ultimately legally liable to the ‘we the people of India.

Hereinafter the state should not bear only the moral liability but strictly legal liability for which the remedy is to compensate the victims that too through separate and distinct mechanism specially established for. This will help to keep control over the administrative, ministerial wing of the state so as to channelize the mechanism for the benefit of pubic at large and to achieve the goal set up in the preamble of the constitution of India i.e. to secure Justice-Social Economic Political.

In a political sense, there is one problem that currently underlies all of the others. That problem is making Government sufficiently responsive to the people. If we dont make government responsive to the people, we dont make it believable. And we must make government believable if we are to have a functioning democracy.

-Gerald R. Ford

PERSONAL DETAILS

NAME- MR. MAHENDRA SUBHASH KHAIRNAR

QUALIFICATION- B.COM. , LL.M. (NET), M.COM. (App.)

POSITION-   Assistant Professor

Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad, Dist. Satara (M.S.)

ADDRESS- Room No. 1388, M.H.B. SATPUR COLONY,

NASHIK -422 012

E-MAIL –   advmahendra1388@gmail.com

mahendra.khairnar@bharatividyapeeth.edu

PHONE NO.  93712500233

[1] For the present article the word’ state’ denotes the meaning as enshrined under Art. 12 of the Indian Constitution, so as to cover not only the formal state but all other authorities of the nature

[2] Mersey Docky & Harbour Board Trustee v Gibbs (1866) LR 1 HL 93.

[3] (1873) App. Cases 430 at 455 ,HWR Wade and C F Forsyth, ‘Administrative Law’ (2003)

[4] M.C.Mehta v Union of India, AIR 1987 SC 965

[5] (1868-1869) 5 Bom. HCR App. 1 p.1

[6] State of Rajastahan v Vidyawati AIR 1992 SC 933

[7] Rudul Shah v State of Bihar, AIR 1983 SC 1086, Sebastian M Hongray v Union of India, AIR 1984 SC 1026, Bhim singh v State of J& K , AIR 1986 SC 494 and SAHELI a Women’s Resource Centre v Commissioner of Police, Delhi, AIR 1990 SC 513

[8] Supra 4

[9] Kasturilal State of Uttar Pradesh,(1965) 1 SCR 375 

[10] (No.1) (1978) 2 All ER 670 (PC)

[11] Under the French legal system-The administrative courts administer the law as between the subject and the state. Administrative courts administer the law as between the subject and the stat. an administrative authority or official is not subject to the jurisdiction of the ordinary civil courts exercising powers under the civil law in disputes between the private individuals. All claims and disputes in which these authorities or officials are parties fall outside the scope of the jurisdiction of ordinary courts and they must be dealt with and decided by the special tribunals. Though the system of droit administrative is very old, the fact is that this system was able to provide expeditious and inexpensive relief and better protection to the citizens against administrative acts or omissions than the Common law system. –C.K.TAKWANI-‘Lectures on Administrative Law’, 3^rd Ed. 2007,Eastern Book Co.

[12]Art. 300(2)

[13] : “The Govt. of India may sue or be sued by the name of the Union of India and the Govt. of a state may sue and be sued by the name of the state and may, subject to any provisions which may be made by an 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”.