Expansion of civil rights lead to swelling state liability

Abstract

The Constitution of India is a charter of liberty adopted by the people of independent nation. Every person is entitled to enjoy certain inalienable fundamental rights. Moreover, being a citizen of the country every civilian do possess civil rights which, may either be codified or not, are essential for him to maintain his dignified and secured life. This surety of rights is one of the good characteristics of welfare democracy. India, too, a country adopted the notion of welfare state is under obligation towards the liberation & extension of civil rights. However the other side of this theory escalates the liability on the state and its administration by not intimidating administrative action infringing civil rights. In this paper the author has made attempt to scrutinize the escalating state liability due to expansion in civil rights in India. This article is the piece of research work done on determining the state liability on administrative action with reference to civil rights in India.

Indian judiciary have played very pivotal role in expanding rights of citizen enshrined under article 21 of the Constitution of India. This significant development paved way for human rights education in India. Human rights education is to be served in the light of precedents set by the apex court in its different judgments. Rights and duties are two sides of the same coin alike rising human rights imposed escalating duty on the state administration. Human rights and state liability are supplementary and complementary to each other.

“Justitia est constans et perpetua voluntas just suum cuique tribundi:

Justice is the constant and perpetual disposition or will of giving to every man his right.”- Law Lexicon

Rights being legal protection 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. Human beings are rational beings. They by virtue of their being human possess certain basic and inalienable rights.

State1 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.

Historical Development

The State liability for the acts of omission and commission committed by its servants, not being a static concept, has been governed by written or unwritten laws. Liability of State for the tortious acts of its servants known as tortious liability of State makes it liable for the acts of omission and commission, voluntary or involuntary and brings it before Court of Law in a claim for non liquidated damages for such acts. This liability is also a branch of Law of Torts. Law of Torts like various other laws has travelled to this country through the British in India and now stands varied due to being regulated by certain local laws and Constitutional provisions[1].

Legislative Development

The English maxim 'the King can do no wrong' regarding the absolute immunity of Crown was never accepted in this country even in the past from ancient times. The Crown could not be sued in tort for acts of its servants in the course of their employment. But it was not accepted in this country even during the rule of the East India Company. The East India Company which came to India initially for carrying on trade gradually became ruler of a great part of this country and made yet another part under its subjugation. It was not a sovereign body but was delegate of the Crown. Its powers and extent of political authority were gradually regulated by certain legislations passed by the British Parliament. The British Crown took over the reigns of this country directly in 1858 after armed uprising in India against the English rule termed by the British Rulers as Sepoy Mutiny of 1857 was quelled. After assumption of sovereign powers by the British Crown in 1858, the first enactment regarding the administration of Country was enacted in 1858 known as Government of India Act 1858.

Later on it was replaced by the Government of India Act 1915 and 1935. Sec. 58 of the Act of 1858, the provisions of which remained on Statute Book in subsequent Government of India Acts, for the first time spelt out tortuous liability of State in Statutory terms. It provided that Secretary of State may sue or be sued which 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 judgments 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".

Under the present Constitution of India two Articles[2] viz Article 294 and Article 300 contain explicit and implicit provisions regarding tortious liability of State and suit against it. Article 294 (b) of the Constitution of India provides that the liability of Union Government or State Government may arise out of any contract or otherwise. The word "otherwise" would include various liabilities including tortious liability also. This Article thus constitutes and transfers the liabilities of Government of India and Government of each governing province in the Union of India and corresponding States. Article 300[3] of the Constitution of India provides that State can sue or be sued as juristic personality.

Judicial Contribution

The vicarious liability of the Government in the absence any statutory rules or contours depended on the extent and exercise of the power by the Government or the head of the Government. In pre-independence period, the extent of tortious liability of the State and its immunity was subject matter of dispute before existing Courts. The liability of the State was dependent on the nature of the act and the category of power in which it was placed viz sovereign or non-sovereign power of the State. Sovereign powers of the State were never defined and in the absence of any clear cut distinction between sovereign and non-sovereign powers of the State Courts of law were faced some times with difficulties in resolving the disputes.[4]

The first judicial interpretation of State liability during the East India Company was made in John Stuart's case, 1775. It was held for the first time that the Governor General in Council had no immunity from Court's jurisdiction in cases involving dismissal of Government servants. In Moodaly[5] the Privy Council expressed the opinion that Common law doctrine of sovereign immunity was not applicable to India.

The Supreme Court of India after coming into force of the Constitution of India in the first notable case regarding State's tortious liability viz. State of Rajasthan v. Mrs. Vidyavati[6]. The Court further held that there can be no difficulty in holding that the State should be as much 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.

The Supreme Court in Nagendra Rao[7] observed that in 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 its functions intend to regulate and control activities of people in almost every sphere: educational, commercial, social, economic, political or even marital, and the demarcating line between sovereign and non sovereign powers for which no rational basis survives has largely disappeared.

In the case of Nilabati Behera v. State of Orissa[8], the Court spelt out the principles on the liability of the State in case for payment of compensation and the distinction between this liability and the liability in law for the payment of compensation for the tort so committed. If no other practicable 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.

Chief Justice Bhagwati has rightly observed that the Courts in India should not be guided any verbal or formalistic cannons of construction but by the paramount object and purpose for which this constitution has been enacted.[9] He too has made law as a tool of social transformation for creating a new social order imbued with social justice.

The Supreme Court of India in Vadodara Municipal Corporation[10] held that while keeping up the Corporation's danger, we accentuate that not simply Constitutional Courts need to, in suitable cases, keep up cases developing out of loss of life or opportunity by ethicalness of encroachment of statutory commitments of open forces, in private law cures, just and sensible instances of nationals against open bodies must be kept up and compensation rewarded in Tort. Where activity of an open body is perilous, most bewildering level of thought is typical and crack of such commitment is huge. This dedication is in like manner referable to Article 21. We stress the necessity for an extensive establishment overseeing tortious commitment of the State and its instrumentalities in such cases for sureness on the subject. We request the Law Commission to explore the matter and make such walks as may be found vital.

The Apex Court in Municipal Corporation of Delhi[11] Observed that, "the idea of carelessness or break of obligation to fare thee well in Tort law as against rupture of obligation in practicing statutory obligation out in the open law was gone into with reference to improvements in diverse locales."

Concluding remarks

The expanded exercises of the State have had a profound effect on all actualities of a singular's life, and in this manner, the State's obligation ought to as needs be made co-broad with its current part of a welfare State.

On account of infringement of the principal privileges of the national by the tortious demonstrations of people in general workers conferred while releasing the statutory capacities appointed to them under a statute, the State is vicariously at risk. Of course the individual liability of the public servant for his tortious acts is always there. The victim and his legal heirs can always therefore proceed against the erring public servant for his tortious acts in a private action. In all as the civil rights of citizen develops it lead to narrowing the defense of state vis-à-vis increases liability on the state.

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 people of India, the constitution is the creation of ‘We the people of India’.

MAHENDRA SUBHASH KHAIRNAR*