Government can be sued for civil wrongs
Q. What is tort?- Published on 16 Mar 17a. Criminal wrong
b. Civil wrong
c. Charges of accidental death or disability
d. All of the above
ANSWER: Civil wrong
- Article 300 of the constitution deals with the suits by or against the Government in India.
- It lays down that the Government of India may sue or be sued by the name of the Union of India and government of a state may sue or be sued by the name of that state.
- Thus, the Union of India and states are legal entities (juristic personalities) for purposes of suits and proceedings, not the Government of the Union or Government of states.
- At present, the position in this respect remains the same as it existed before the constitution.
- In the pre-constitution period, the government was suable for contracts but not for torts (wrongs committed by its servants) in respect of its sovereign functions.
Liability for Contracts -
- Under the exercise of its executive power, the Union or a state can enter into contracts for the acquisition, holding and disposal of property, or to carry on any trade or business etc.
But, the constitution lays down three conditions which must be fulfilled by such contracts -
1. They must be expressed to be made by the President or Governor, as the case may be.
2. They must be executed on behalf of the President or Governor, as the case may be.
3. They must be executed by such person or in such manner as the President or Governor may direct or authorize.
- These conditions are mandatory and failure to comply nullifies the contracts.
- Further, the President or the Governor and the officer executing the contract is not personally liable in respect of any contract executed.
- This immunity is purely personal and does not immunize the government, making the government suable in contracts.
Liability for Torts -
- The East India Company was suable for its functions as a trader but not as a sovereign.
- This immunity of the Company in respect of its sovereign functions was based on the English Common Law maxim that the ‘King can do no wrong’, which means that the King was not liable for wrongs of his servants.
- This traditional immunity of the State (i.e., Crown) in Britain from any legal liability for any action has been done away by the Crown Proceedings Act (1947).
- However, the position in India still remains the same.
- Therefore, the government (Union or states) in India can be sued for torts (civil wrongs) committed by its officials only in the exercise of its non-sovereign functions but not in the sovereign functionsl ike administering justice, constructing a military road, commandering goods during war etc.
- This distinction of immunity of the government in respect of its sovereign functions was established in the famous P and Steam Navigation Company case (1861).
- This was reaffirmed by the Supreme Court in the Kasturilal case (1965).
- But, after this case, the Supreme Court started giving a restrictive interpretation to sovereign functions of the government and awarded compensation to victims in a large number of cases.
- In Nagendra Rao Case (1994), the Supreme Court criticized the doctrine of sovereign immunity of the State and adopted a liberal approach.
- It ruled that when a citizen suffers any damage due to the negligent act of the servants of the State, the State would be liable to pay compensation for it and the State cannot avoid this liability on the ground of sovereign immunity.
- It held that in the modern sense, the distinction between sovereign and non-sovereign functions does not exist.
- It laid down the proposition that barring a few functions, the state cannot claim any immunity.
- No legal or political system today can place th state above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the state without any remedy.
- In a welfare, state, the functions of the state are not only the defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of the people in almost every sphere - educational, commercial, social, economic, political and even marital.
- In the above case, the Supreme Court did not overrule its judgement in the Kasturilal case (1965).
- However, it said that it is applicable to rare and limited cases.
- In Common Cause Case (1999), the Supreme Court again examined the whole doctrine and rejected the sovereign immunity rule.
- It said that in modern times when the state activities have been considerably increased it is very difficult to draw a line between its sovereign and non-sovereign functions and therefore, the liability of the state must be made co-extensive with the modern concept of a welfare state.
- The s tate must be liable for all tortuous acts of its employees, whether done in exercise of sovereign or non-sovereign powers.
