1) Which of the following is/are true regarding suing public officials?
1) No criminal or civil proceedings can be started against the President and the Governors in respect of their personal acts nor can they be arrested or imprisoned.
2) The constitution grants immunity to the President, Governors and Ministers for their official acts.
a. Only 1
b. Only 2
c. Both 1 and 2
d. Neither 1 nor 2
ANSWER: Neither 1 nor 2
Immunity to President and Governors -
- No criminal proceedings can be started against the President and the Governors in respect of their personal acts nor can they be arrested or imprisoned.
- This immunity is limited to the period of the term of their office only and does not extend beyond that.
- However, civil proceedings can be started against them during their term of office in respect of their personal acts after giving two months’ advance notice.
Immunity to Ministers -
- The constitution does not grant any immunity to the ministers for their official acts.
- But, since they are not required to countersign (as in Britain) the official acts of the President and the Governors, they are not liable in the courts for those acts.
- Moreover, they are not liable for the official acts done by the President and the Governors on their advice as the courts are debarred from inquiring into such advice.
- However, the ministers do not enjoy any immunity for their personal acts, and can be sued for crimes as well as torts in the ordinary courts like common citizens.
Immunity to Judicial Officers -
- The judicial officers enjoy immunity from any liability in respect of their official acts and hence, cannot be sued.
Immunity to Civil Servants -
- Under the constitution, the civil servants are conferred personal immunity from legal liability for official contracts.
- This means that the civil servant who made a contract in his official capacity is not personally liable in respect of that contract but it is the government (Central or State) that is liable for the contract.
- But, if the contract is made without complying the conditions specified in the constitution, then the civil servant who made the contract is personally liable.
- Further, the civil servants also enjoy immunity from legal liability for their tortious acts in respect of the sovereign functions of the government.
- Civil proceedings can be instituted against them for anything done in their official capacity after giving a two months’ advance notice.
- But, no such notice is required when the action is to be brought against them for the acts done outside the scope of their official duties.
- Criminal proceedings can be instituted against them for acts done in their official capacity, with the prior permission of the President or the Governor, where necessary.
2) What is tort?
a. 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.
3) The 44th Amendment Act (1978) has abolished the constitutional obligation to pay compensation in regard to the compulsory acquisition of private property by the governments except in case of -
a. When the government acquires the property of tribals
b. When the government acquires the property of a minority religious institution
c. When the government acquires the property of a minority educational institution
d. None of the above
ANSWER: When the government acquires the property of a minority educational institution
- Articles 294 to 300 in Part XII of the constitution deal with the property, contracts, rights, liabilities, obligations and suits of the Union and the states.
- In this regard, the constitution makes the Union or the states as juristic (legal) persons.
- The Parliament as well as the State Legislatures are empowered to make laws for the compulsory acquisition and requisitioning of private property by the governments.
The 44th Amendment Act (1978) has also abolished the constitutional obligation to pay compensation in this regard except in two cases -
1. when the government acquires the property of a minority educational institution; and
2. when the government acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits.
- The Union or a state can acquire, hold and dispose property under the exercise of its executive power.
- The executive power of the Union or a state extends to the carrying on any trade or business within and in other states also.
- All property and assets that were vested in the Dominion of India or a province or an Indian princely state, before the commencement of the present constitution, became vested in the Union or the corresponding state.
- Similarly, all rights, liabilities and obligations of the government of the dominion of India or a province or an Indian state would now be the rights, liabilities and obligations of the Government of India or the corresponding state.
- Any property in India that would have accrued to King of England or ruler of Indian state (princely)by escheat (death of a person intestate without any heir), lapse (termination of rights through disuse or failure to follow appropriate procedures) or bona vacantia (property found without any owner)for want of a rightful owner, would now vest in the state if the property is situated there, and in the Union, in any other case.
- In all these three cases, the property accrues to the government as there is no rightful owner (claimant).
- All lands, minerals and other things of value under the waters of the ocean within the territorial waters of India, the continental shelf of India and the exclusive economic zone of India vests in the Union.
- Hence, a state near the ocean cannot claim jurisdiction over these things.
- India’s territorial waters extend to a distance of 12 nautical miles from the appropriate base line.
- Similarly, India’s exclusive economic zone extends upto 200 nautical miles.
4) Provisions with respect to tribunals were added by which Amendment Act?
- The original constitution did not contain provisions with respect to tribunals.
- The 42nd Amendment Act of 1976 added a new Part XIV-A to the constitution.
- This part is entitled as ‘Tribunals’ and consists of only two Articles - Article 323 A dealing with Administrative Tribunals and Article 323 B dealing with tribunals for other matters.
- Article 323 A empowers the Parliament to provide for the establishment of Administrative Tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of the centre, the states, local bodies, public corporations and other public authorities.
- In other words, Article 323 A enables the Parliament to take out the adjudication of disputes relating to service matters from the Civil Courts and the High Courts and place it before the Administrative Tribunals.
- In pursuance of Article 323 A, the Parliament has passed the Administrative Tribunals Act in 1985.
- The act authorizes the Central Government to establish one Central Administrative Tribunal and the State Administrative Tribunals.
- This act opened a new chapter in the sphere of providing speedy and inexpensive justice to the aggrieved public servants.
5) Which of the following places is not a principle seat of High Court but has a regular bench of Central Administrative Tribunal (CAT)?
- The Central Administrative Tribunal (CAT) was set up in 1985 with the principal bench at Delhi and additional benches in different states.
- At present, it has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow.
- These benches also hold circuit sittings at other seats of High Courts.
- The CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants covered by it.
- Its jurisdiction extends to the All-India Services, the Central Civil Services, civil posts under the centre and civilian employees of defense services.
- However, the members of the defense forces, officers and servants of the Supreme Court and the secretarial staff of the Parliament are not covered by it.
- The CAT is a multi-member body consisting of a Chairman and members.
- Earlier, the CAT consisted of a Chairman, Vice-Chairmen and members.
- With the amendment in Administrative Tribunals Act, 1985 in 2006, the members have been given the status of judges of High Courts.
- In 2013, the sanctioned strength of the Chairman is one and sanctioned strength of the Members is 65.
- They are drawn from both judicial and administrative streams and are appointed by the President.
- They hold office for a term of five years or until they attain the age of 65 years, in case of Chairman and 62 years in case of members, whichever is earlier.
- The CAT is not bound by the procedure laid down in the Civil Procedure Code of 1908.
- It is guided by the principles of natural justice.
- These principles keep the CAT flexible in approach.
- Only a nominal fee of Rs. 50 is to be paid by the applicant.
- The applicant may appear either in person or through a lawyer.
- Originally, appeals against the orders of the CAT could be made only in the Supreme Court and not in the High Courts.
- However, in the Chandra Kumar case (1997), the Supreme Court declared this restriction on the jurisdiction of the high courts as unconstitutional, holding that judicial review is a part of the basic structure of the constitution.
- It laid down that appeals against the orders of the CAT shall lie before the division bench of the concerned High Court.
- So, now it is not possible for an aggrieved public servant to approach the Supreme Court directly against an order of the CAT, without first going to the concerned High Court.
6) Which of the following is/are true regarding State Administrative Tribunals (SATs)?
1) Chairman of SAT is appointed by the respective State’s Governor.
2) Madhya Pradesh does not have SAT.
a. Only 1
b. Only 2
c. Both 1 and 2
d. None of the above
ANSWER: Only 2
- The Administrative Tribunals Act of 1985 empowers the Central Government to establish the State Administrative Tribunals (SATs) on specific request of the concerned State Governments.
- So far (2013), the SATs have been set up in the nine states of Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala.
- However, the Madhya Pradesh, Tamil Nadu and Himachal Pradesh Tribunals have since been abolished.
- The Kerala Administrative Tribunal was set up with effect from 26th August, 2010.
- Like the CAT, the SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.
- The Chairman, and members of the SATs are appointed by the President after consultation with the Governor of the state concerned.
- The act also makes a provision for setting up of Joint Administrative Tribunal (JAT) for two or more states.
- A JAT exercises all the jurisdiction and powers exercisable by the Administrative Tribunals for such states.
- The Chairman and members of a JAT are appointed by the President after consultation with the Governors of the concerned states.
7) Parliament and State Legislatures can establish tribunals for adjudicating disputes relating to which of the following matters?
3) Consumer complaints.
4) Rent and tenancy rights.
a. 1 and 4
b. 2 and 3
c. 1 and 3
d. All of the above
ANSWER: 1 and 4
Under Article 323B, the Parliament and the State Legislatures are authorized to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters -
2. Foreign exchange, import and export.
3. Industrial and labor.
4. Land reforms.
5. Ceiling on urban property.
6. Elections to Parliament and State Legislatures.
7. Food stuffs.
8. Rent and tenancy rights (added by 75th Amendment Act of 1993).
Articles 323 A and 323 B differs in the following aspects -
1. While Article 323 A contemplates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters (mentioned above).
2. While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and State Legislatures with respect to matters falling within their legislative competence.
3. Under Article 323 A, only one tribunal for the centre and one for each state or two or more states may be established. There is no question of hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.
- In Chandra Kumar case4 (1997), the Supreme Court declared those provisions of these two articles which excluded the jurisdiction of the High Courts and the Supreme Court as unconstitutional.
- Hence, the judicial remedies are now available against the orders of these tribunals.