Author Name:   mskhairnar

state liability on administrative action

 State Liability on Administrative Action With Reference To Civil Rights in India

“The State is the product of human consciousness.
Human consciousness postulates liberty,
liberty involves rights and
rights demand the state.” -Thomas Hill Green

Statement of Research Problem-
India is a country that has accepted the notion of Welfare State. It means the country has accepted the liability towards securing the public welfare and to serve the interest of all citizens. However many incidences occurred when the State had fallen short in discharging its liabilities towards satisfying the needs of victims and to compensate them. When incidences of violation of legal rights of an individual occurs and for which no immediate relief is provided the Law of Torts comes to help.

No civilized system can permit an executive to work arbitrarily and claim that are entitled to act in any manner, as if he is a sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be deprived of his rights or liberties illegally or by negligent act of officers of the State without any remedy. The State is a juristic person, propounded in nineteenth century is a sound sociological basis for State immunity. The circle has gone round and the emphasis now is the fundamental principle of liberty, equality, fraternity and the rule of law, independence of judiciary and following the principles of natural justice.

The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for the sake of society and 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 state was established to meet the needs of the individual and society, and hence it has to discharge properly obligations expected of it. The proper functioning of the state depends upon a well-organized system of duties and rights. It should also promote the health of the individuals, spread education and discharge other functions, political social and economic for developing the personality of the individual.

Role of the State and Law of Tort

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. Such interactions often raise legal problems, whose solution requires an application of various provisions and doctrines. 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 Law of Tort figures much more frequently, than any other branch of law. By definition, “a tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for which the remedy is unliquidated damages”. It thus encompasses all wrongs for which a legal remedy is considered appropriate.

Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of the Law of Torts, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, & in reality, in India. It is for this reason that the researcher found it necessary to consider the subject and to suggest certain reforms.

In the State of A.P. v. Chella Ramakrishna Reddy, The Hon’ble Supreme Court has also concluded in the following words, “….. the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail.”

Tortious liability- an Indian scenario

The Law of torts as administered in India in modern times is the English law as found suitable to Indian conditions and as modified by the Acts of the Indian Legislature. The word ‘tort’ is derived from the latin term tortum-to twist, and implies conduct which is twisted or tortuous. It now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable.

To constitute tort there must be a wrongful act. The word ‘act’ in this context is used in wide sense to include both positive and negative act, i.e. acts and omissions. Wrongful acts which make a person liable in tort are positive acts and sometimes omissions. An omission includes not only failure to do something in doing an act but also a bad way of performing the act. The law does not impose liability for mere omissions. An omission incurs liability when there is a duty to act.

Tortious liability of State and its different phases

Tort law has been regularly concerned with the problem of determining civil responsibility for injury. Widespread attitude which associated injury with bad luck or deficiencies in character has been gradually replaced by one which presumes that most injured persons are entitled to compensation, through the legal system or some other mechanism. This transformation is the prevailing ethos of injury in America has been an important determinant of the state of tort law.

Throughout the history of the Law of Torts in America creative scholars and judges have sought to shape tort law to approximate their ideal conceptions of the field. But the subject matter of tort law has proved sufficiently amorphous to resist that shaping, so that a fresh supply of material has always existed for new generations of scholars and judges, and the relationship between changing ideas and changing legal doctrines has sometimes been obscured.

Different comprehensive standards of liability in tort (negligence, strict liability) have been formulated at different times. Competing central purposes for tort law (admonishing blameworthy conduct or compensating injured persons) have been articulated. The ambit of tort law's coverage has been expanded theoretically (to include "traditional" areas of the Law of Sales) and contracted (to exclude areas superseded by Constitutional Law). Tort law has been thought of as essentially a private law subject or as "public" law in disguise. The image of the subject of Torts has varied from that of a unified collection of comprehensive and interlocking principles of civil liability, embodied in appellate cases, to that of a grab-bag collection of diverse judgments by individual courts. Yet none of these changing intellectual developments has affected the integrity of tort law itself. Tort law's integrity has come from a recurrent need in American society for some legal response to the problem of responsibility for civilly inflicted injuries. In the last hundred-odd years Americans have been injured in all sorts of diverse ways; in that time secular explanation's for, and responses to, the problem of injuries have predominated. Tort law has been a major explanatory and responsive device. Its integrity and its amorphousness as well, can be linked to the place of injury in American life.

Though in India the risk is not of a drift towards the American style but with the widening of the Right to Life guaranteed by Art. 21 of the Constitution of India to embrace almost everything which goes to make a man’s life meaningful, complete and worth living with dignity, the risk is that the blame for every misfortune may be laid at the doorstep of the State.

Art. 21 and liability doctrine

The Case of Rudul Shah, 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 of India. The supreme Court cases discussed above did not refer to the doctrine of sovereign immunity or the case of Kasturilal on which the following submission was made:

“It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the ground that it did not consider the nature of liability of the state when there is deprivation of fundamental right.”

The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for the sake of society and 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.

Liability and Art. 300 of the Indian Constitution

The law in India with respect to the Liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution. 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.

Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, in reality, in India. It is for this reason that we have considered it necessary to consider the subject and to suggest certain reforms.

The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution.

Conclusion
In the beginning the constitutional machineries relating to governance worked more or less to general satisfaction and provided the people with a fairly safe and secure life. However, as time passed their inadequacies have become marked and Government has lost its elegance as it has failed to live up to the expectations of the Constitution to give real stuff to the policies designed to promote social well being.

The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on individual; it has assumed tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person’s existence when he is not in contact with the administration in one way or other. This circumstance has posed certain basic and critical questions for administrative lawyers. Does arming the administration with more and more powers keep in view the interest of the individual? Are adequate precautions being taken to ensure that the administration does not misuse or abuse its powers? Do the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? Has adequate control mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and after balancing the individual’s interest against the needs of social control? It has increasingly become important to control the administration, consistent with efficiency, in such a way that it does not interfere with impunity with the rights of the individual.

There is an age old conflict between individual liberty and government. There thus arises need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between the private interest and the public interest. It is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control-mechanism be also evolved so as to ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. In securing the balance between public power and personal rights, it is necessary to have efficient administration. In an administrative law case, the private party is confronted by an agency of government endowed by all the power, prestige and resources enjoyed by the possessor of sovereignty. In reality administrative powers are exercised by thousands of officials and affect millions of people. Maladministration results in weakening the government.

It would be apparent from the Nagendra Rao and other case law on the subject, that definiteness of the precise contours and certainty of principles of universal application are lacking. While holding that the distinction between sovereign powers and non-sovereign powers has become academic in the present day Welfare State, the court in Nagendra Rao again affirms and accepts the theory of “primary and inalienable functions”.

Suggestion
I am of the opinion that the creation of an administrative Division of the High Courts to which the various administrative jurisdictions would be transferred to avoid time-consuming conflicts of jurisdiction for the purpose of deciding ancillary matters arising in the course of administrative appeals.

In France, there is highly developed centralized administration hence it would be in appropriate to establish in India, an institution similar to Conseil d’Etat. In India the administrative law has not been developed to that extent. However, the administrative law taking shape in India, therefore it will be necessary to develop administrative courts on the lines of France an d in that event the establishment of a Council of State on the lines of the French Counsel of Etat woud be necessary because that will serve as counterpoise to the arbitrary action of the administrators.

The creation of a separate hierarchy of administrative courts brings about a clear division between the spheres of civil and administrative law. There are separate law reports in both branches of law. In this context, it is desirable that India should develop a well ordered system of administrative law which may be able to absorb the new relations of public law into this legal system.
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# By Salmond
# AIR 2000 SC 2083
# 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 # Commissioner of Police, Delhi, AIR 1990 SC 513
# Kasturilal v State of Uttar Pradesh,(1965) 1 SCR 375
# National Commission To Review The Working Of The Constitution, A Consultation Paper* on Liability Of The State In Tort, This Consultation Paper on “Liability of the State in Tort” is based on a paper prepared by Shri P.M. Bakshi, former Member, Law Commission of India, New Delhi, for the Commission
# HWR Wade and C F Forsyth, ‘Administrative Law’ (2003)
# Principles of Administrative Law, M P Jain & S N Jain, 4th Edn. 2003
# Griffith & Street, Principles of Administrative Law 2 (1973) cf Principles of Administrative Law, M P Jain & S N Jain, 4th Edn. 2003
# N. Nagendra Rao Vs. State of A.P., AIR 1994 SC 2663
# National Commission To Review the working of the Constitution, A Consultation Paper on LIABILITY OF THE STATE IN TORT

The author can be reached at: mskhairnar@legalserviceindia.com

ISBN No: 978-81-928510-1-3
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