Author Name:   Arvind Lakhawat Advocate

Every problem has its own remedy. For the purpose of actions of the administration, these remedies help in preventing the recurrence the extraordinary legal remedies that is available to the individual against the illegal of an illegality.

Privileges And Immunities In Suits of The State

Every problem has its own remedy. For the purpose of actions of the administration, these remedies help in preventing the recurrence the extraordinary legal remedies that is available to the individual against the illegal of an illegality. However, they do not provide full redress to the aggrieved individual. Private citizens access to the ordinary courts and the ordinary legal remedies may be qualified by the existence of certain privileges and immunities enjoyed by the state. These privileges immunities though justified in the days in which they originated, are hardly justified in a democratic society. However, the state does enjoy and it may be necessary for it to enjoy certain privileges and immunities. Administrative law is engaged in the process of redefining such privileges and immunities with a view to reconciling them with the needs of modern times.

The Constitution clearly says that the executive power of the Union and of each state extends to ‘the carrying on for any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose’. The Constitution therefore, provides that a Government may sue or may be sued by its name. Similar provisions to be found in the Code of Civil Procedure. The above provisions do not, however, enlarge or restrict the extent of State liability; they merely provide the method of redress. The extent of liability will be discussed separately.
Privileges and Immunities of the Administration in Suits

The various privileges available to the Government under various statutes are as follows:

I. Immunities from the operation of the statute

In England the rule is that its own laws do not bind the Crown unless by express provision or by necessary implication they are made binding on it. Thus in England the statutes are not binding on the crown unless by express provision or by necessary implication, they are made binding thereon. Its basis is the maxim “ the King can do on wrong. This rule was followed even in India till 1967.
In India the present position is that the statute binds the State or Government unless expressly or by necessary implication it has exempted or excluded from its operation. In case the State has been exempted from the operation of the statute expressly, there is no difficulty in ascertaining whether the statute is binding on the State or not but it becomes a difficult issue in case where the State is exempted from the operation of the statute by necessary implication. However, where the statute provides for criminal prosecution involving imprisonment, the statute is deemed to be excluded from the operation of the statute necessary implication.

II. Privileges and Immunities under the Civil Procedure Code, 1908.

Section 80 (1) provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered in the manner provided in the section. The section is mandatory and admits of no exception. Thus, the requirement of notice is mandatory. However, it is to be noted that if a public officer acts without jurisdiction, the requirement of notice is not mandatory. Its object appears to provide the Government or the public officer an opportunity to consider the legal position thereon and settle the claim without litigation.

The Government may waive the requirement of notice; the waiver may be express or implied.
The requirement of notice causes much inconvenience to the litigants especially when they seek immediate relief against the Government.

To minimize the hardships to the litigants a new Clause (20 was inserted in Section 80 of the C.P.C by the Civil Procedure Code Amendment Act, 1970. The clause provides that the Court may grant leave to a person to file a suit against the Government or a public officer without serving the two-month’s notice in case where relief claimed is immediate and urgent. Before granting this exemption the Court is required to satisfy itself about the immediate and urgent need.

It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory Corporation. Consequently in case the suit is filed against the statutory Corporation. Consequently, such notice is not required to be given in cases the suit is filed against statutory Corporation.

Section 80 does not apply with respect to a claim against the Government before the claim Tribunal under the Motor Vehicle Act.

Section 80 of the C.P.C. does not apply to a writ petition against the Government or a public officer, the requirement of notice as provided under Section 80 of the C.P.C is not required to be complied with Section 82 of the C.P.C. also provides privilege to the Government. According to this section where in a suit by or against the Government or the public officer, a time shall be specified in the decreed within which shall be satisfied and if the decree is not satisfied writhing the time so specified and within three months from the date of the decree. Where no time is so specified, the Court shall report the case fro the orders of the Government. Thus a decree against the Government or a public officer is not executable immediately. The Court is required to specify the time within which the decree has to be satisfied and where no such time has been specified, three moths from the date of the decree will be taken to be the time within which is to be satisfied. If the decree is not satisfied within such time limit the Court shall report the case for the orders of the Government.

III. Privileges under the Evidence Act (Privileges to withhold documents)

In England the Crown enjoys the privilege to withhold from producing a document before the Court in case the disclosure thereof is likely to jeopardize the public interest. In Duncon v. Cammel Laird Co. Ltd. The Court held that the Crown is the sole judge to decide whether a document is a privileged one and the court cannot review the decision of the Crown. However, this decision has been overruled in the case of Conway v. Rimmer. In this case the Court has held that it is not an absolute privilege of the Crown to decide whether a document is a privileged one. The court can see it and decide whether it is a privileged one or not.

In India Section 123 provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the officer at the Head thinks fit. Only those records relating to the affairs of the State are privileged, the disclosure of which would cause injury to the public interest. To claim this immunity the document must relate to affairs of state and disclosure thereof must be against interest of the State or public service and interest.

The section is based on the principle that the disclosure of the document in question would cause injury to the public interest And that in case of conflict between the public interest and the private interest, the private interest must yield to the public interest.

The Court has power to decide as to whether such communication has been made to the officer in official confidence. For the application of Section124 the communication is required to have made to a public officer in official confidence and the public officer must consider that the disclosure of the communication will cause injury to the public interest.

According to Section162 a witness summoned to provide a document shall, if it is in his possession or power, bring it to the Court, not with outstanding any objective which there may be to its production or to its admissibility. The Court shall decide on the validity of any such objection. The court, if it sees fit, may inspect the document, unless it refers to the matters of State or take other evidence to enable it to determine on its admissibility. If for such purpose it is necessary to cause any document to be translated the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code.

Sections 162 apply not only to the official documents but also to the private documents.

It is for the Court to decide as to whether a document is or is not a record relating to the affairs of the State. For this purpose the Court can take evidence and may inspect the document itself.

In State of Punjab v. Sodhi Sukdev Singh, court had the opportunity of discussing the extent of government privilege to withhold documents where twin claims of governmental confidentiality and individual justice compete for recognition.

The court was very alive to the constraints of this privilege on private defense, therefore Gajendragadkar, J. delivering the majority judgment cautioned that care has to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provision of Section 123. In order to guard against the possible misuse of the privilege, the court also developed certain norms. First, the claim of privilege should be in the form of an affidavit, which must be signed by the Minister concerned, or the Secretary of the Department. Second, the affidavit must indicate within permissible limits the reasons why the disclosure would result in public injury, and that the document in question has been carefully read and considered and the authority is fully convinced that its disclosure would injure public interest. Third, if the affidavit is found unsatisfactory, the court may summon the authority for cross-examination.

Working the formulations still further, the court in Amar Chand v. Union of India, disallowed the privilege where there was evidence to show that the authority did not apply its mind to the question of injury to the public interest which would be caused by the disclosure of the document. In Indira Nehru Gandhi v. Raj Narain, the Court compelled the production of Blue Books of the policy and disallowed the claims of privilege. In State of Orissa v. Jagannath Jena, the Supreme Court again disallowed the privilege on the ground that the public interest aspect had not been clearly brought out in the affidavit. In this case, the plaintiff wanted to see endorsement on a file by the Deputy Chief Minister and the I. G. of Police.

The law on Government privileges took a new turn in S.P. Gupta v. Union of India, The question in the present case was whether the correspondence between the Law Minister and these Chief Justices ought to be produced in the Supreme Court, so, as to enable the court to judge the question of validity of the non-continuance of an Additional Judge in the Delhi High Court. The government opposed the production of these reports on the ground that their disclosure would injure public interest under Section 123 of the Indian Evidence act. But the Supreme Court ruled otherwise. The case is a definite evidence of court’s attempt to promote the ideal of open Government in India.

Justice Bhagwati took some such view in the above case when he expressed his faith in the ideal of an open Government. Merely secrecy of the Government is not a vital public interest so as to prevail over the most imperative demands of justice.

In giving a new orientation to the statutory provision in question, Bhagwati, J. emphasized, “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their Government is doing.” He observed: “The citizen’s right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic state. And this is why the demand for openness in the Government is increasingly growing in different parts of the world.”

He further pointed out that if the process and functioning of Government are kept shrouded in secrecy and hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority.

The decision has opened a new dimension of judicial control over the exercise of privileges under Sections 123 by the executive. The Court now has assumed the power of inspection of documents in camera and if it finds that its disclosure would harm the public interest, the claim for non-disclosure might be upheld. If the disclosure, to the mind of the Court, does not harm the public interest, its disclosure would be ordered.

Period of Limitation for Suit Against Government
Article 149 of the First Schedule of the Limitation Act of 1890 prescribed a longer period of limitation for suits by or on behalf of the State. The Act of 1963 contains a similar provision under Article 112. The Article applies to the Central Government an all the State Governments including the Government of the State of Jammu land Kashmir. This longer limitation period was based on the common law maxim nulla tempus occur it rein, that is, no time affects the Crown.

The longer period of limitation, however, does not apply to appeals and applications by Government.

Under Section 5 of the Limitation Act, it is provided that an appeal or application may be admitted after the expiry of the period of limitation if the court is satisfied that there was sufficient cause for the delay. It was held that the government was not entitled to any special consideration in the matter of condo nation of delay.

IV. Immunity from Promissory Estoppel

Estoppel is a rule whereby a party is precluded from denying the existence of some state of facts, which he had previously asserted and on which the other party has relied or is entitled to rely on. Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of promissory estoppels.

The doctrine of promissory estoppel or equitable estoppel is firmly established in administrative law. The doctrine represents a principle evolved by equity to avoid injustice. Application of the doctrine against government is well established particularly where it is necessary to prevent manifest injustice to any individual.

The doctrine of promissory estoppel against the Government also in exercise of its Government, public or executive functions, where it is necessary to prevent fraud or manifest injustice. The doctrine within the aforesaid limitations cannot be defeated on the plea of the executive necessity or freedom of future executive action.

The doctrine cannot, however, be pressed into aid to compel the Government or the public authority “to carry out a representation or promise.
a) which is contrary of law; or
b) which is outside the authority or power of the Officer of the Government or of the public authority to make.”
It is to be noted that Estoppel cannot be pleaded against a minor or against statute. Estoppel does not lie against the Government on the representation or Statement of facts under Section 115 if it is against the statute or Act of the Legislature but it may be applied in irregular act. The liability of the Government has been extended by the doctrine of Promissory Estoppel.

V. Doctrine of Promissory Estoppel

Doctrine of Promissory Estoppel is often applied to make the Government liable for its promises and stopped from going back from the promise made by it. According to this doctrine where a person by words or conduct and the other person acts on such promise changes his positive to his detriment, the person who gives such promise or assurance cannot be allowed to revert or deviate from the promise.

Case Law Related To Doctrine of Promissory Estoppel

In India, the courts are invoking this doctrine; 
In Union of India v. Anglo (Indo) – Afghan Agencies Ltd. , The doctrine of Promissory Estoppel was applied against the Government. This case developed a new judicial trend. The Court upheld the application of Promissory Estoppel to the executive acts of the State. The Court negated the plea of executive necessity. Under the scheme an exporter was entitled to import raw materials equal to the amount, which was exported. Five lakhs rupees worth goods were exported by the petitioner but he was given import license for an amount below two lakh rupees. The Court held that the Government was bound to keep its promise. The scheme was held to be binding on the Government and the petitioner was entitled to get the benefit of the scheme.

The Supreme Court in Century Spinning and Manufacturing Co. Ltd. V. Ulhasnagar Municipal Council, again extended the doctrine of Promissory Estoppel. In this case this doctrine was applied against public authorities. The Court has made it clear that this Court will not make a distinction between a private individual and a public body so far as the doctrine of Promissory Estoppel is concerned.

In short, if the Government makes a promise and promisee acts upon it and changes his position, then the Government will be held bound by the promise and cannot change its position against the promisee and it is not necessary for the promisee to further show that he has acted to his detriment. For the application of the doctrine of Promissory Estoppel it is not necessary that there should be some pre-existing contractual relationship between the parties.

In Delhi Cloth and General Mills v. Union of India, the Supreme Court has held that for the application of the principle of Promissory Estoppel change in position by acting on the assurance to the promise is not required to be proved.

However, the judicial opinion is that it cannot be invoked against a statutory provision or to support an ultra vires act or to compel the Government or a public authority to carry out a promise, which is contrary to law, or ultra vires its powers.

Non-Applicability of Doctrine of Promissory Estoppel

The doctrine of Promissory Estoppel is not applied in the following conditions:
1. Public Interest: The doctrine of Promissory Estoppel is an equitable doctrine and therefore it must yield place to the equity if larger public interest requires. It would not be enough to say that the public interest requires that the Government would suffer if the Government were required to honor it. In order to resist its liability the Government would disclose to the Court the various event insisting its claim to be exempt from liability and it would be for the Court to decide whether those events are such as to render it equitable and to enforce the liability against the Government.

2. Representation against law: The doctrine of Promissory Estoppel cannot be applied so as compel the Government or the public authority to carry out a promise, which does law prohibit.

3. Ultra vires promise or representation: If the promise or representation made by the officer is beyond his power, the State cannot be held liable for it one the basis of the Principle of Promissory Estoppel.

4. Fraud: the doctrine of Promissory Estoppel is not applied in cases where the promise from the Government is obtained by fraud.

5. Fraud on the Constitution: The doctrine of Promissory Estoppel is not applied in cases when the promise or representation is obtained to play fraud on the Constitution and enforcement would defeat or tend to defeat the Constitutional goal.

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[1] 1942 AC 624
[2] 1968 AC 910
[3] AIR 1961 SC 493
[4] AIR 1964 SC 1658
[5] 975 Supp SCC 1: AIR 1975 SC 2299
[6] (1972) 2 SCC 165
[7] AIR 1982 SC 149
[8] AIR 1968 SC 718
[9] AIR 1971 SC 1021
[10] 1988 1 S.C.C. 86 

The author can be reached at: prashanti.upadhyaya@legalserviceindia.com

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