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Liability of State in relation to Constitutional Damages
Introduction
The development of constitutional tort which began in early 80s and was
cemented into judicial precedent in Nilabati Behra has profoundly influenced the
direction tort law has taken in the past decade. It is in recognizing state liability, and in
denuding the defense of sovereign immunity, that constitutional tort has taken wide arcs
around previously established practices in tort law. Its influence on the recognition of
wrongs, and of the vicarious liability of the state, is in evidence in the cases under survey.
The toehold that culpable inaction has acquired over the years appears to be
getting firmer, as a case from Andhra Pradesh High Court bears witness.
The quantum of damages has acquired a centrality in accident law. The connected
aspect of the growing importance of IInd schedule to the Motor Vehicle Act, 1988 in
determining the amount, and boundaries of damages is well represented.
An exploration into an area of pre-emptive action in tort law, found in a case
concerning the tort of nuisance presents a potential for the legal imagination.
Covering cases reported in 2000 and 2001, negligence, especially in cases of
medical negligence, presents striking studies of perceptions and priorities which are most
evident in the area of family planning and population control. The test of duty of care
presents itself with increased frequency than it has in years recently past.
Constitutional tort actions, 1 like their common law coventerparts, are generally
1. State could also theoretically enact statutes allowing individuals to bring action in state
court against officials for violating their federal constitutional rights.
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thought of in terms of their functions as monetary remedies. Ideally, awarding damages
to individuals who harmed by a federal or state officials violation of the constitution
compensation for some of the individuals past injury and deter future rights deprivations.
In an essay published in Yale Law Journal, 2 Dean John Jeffries contends that fully
compensating all victims of constitutional violations for their past harm may discourage
courts from innovating in the area of constitutional courts.
If the constitutional torts actions do not deter constitutional rights violations and if
compensation for constitutional rights violations is too costly, courts may be more willing
to expand governmental immunities or dismiss such cases before they go to the jury.
Alternatively, the legislature may restrict the rights of certain litigants to bring such
actions. Plaintiffs, asserting these actions may not get the support or consideration that
may deserve from legal community. Defenders of constitutional tort actions argue that
damages have a deterrent effect that generally out weights the costs to society. 3 Critics
respond that damages donot have a deterrent effect and may even have the detrimental
effect of keeping courts from expanding individual rights.4
While the deterrent effect of awarding damages is a strong justification for having
a constitutional tort action, conceptualizing that remedy solely in monetary terms is too
narrow an approach.
2. John C. Jeffries, Jr; The Right Remedy Gap in Constitutional law, 109 Yale LJ. 87, 89-
90 (1999)
3. Myriam E. Gilles, In Defense of making Government Pay: The Deterent effect of
constitutional Tort Remedies, 35 GA.L. Rev. 845 (2001)
4. Supra Note 2.
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Regardless of whether or not one can justify monetary awards for constitutional
rights violations on compensation or deterrence grounds, as an individual remedy, the
constitutional tort action serves a unique role in range of remedies courts use to enforce
the constitution. The constitutional tort action sets and enforces limits on governmental
discretion in a way that structural injunction and other remedies cannot.
By awarding damages, Common Law tort actions serve to compensate victims for
injuries suffered because of wrongdoing and also serve to deter such wrongdoing in the
future.5 Similarly, awarding damages for constitutional violations serves to compensate
those who are injured when government officials violates the constitution and also serves
to deter deprivations of constitutional rights in the future6.
Future it is to be noted that the court has recognized that the payment of
compensation may be an effective tool for redresses. If we read the work of posner7, we
realize that monetary compensation would actually be the most economical way to deal
with any wrong which is perpetrated. If monetary compensation is given to any
individual it serves the dual purpose of not only compensating him for the lost hours of
productivity but psychologically gives a feeling of severance from the pain the person
had to undergo. Thus through the prism of society as well as individual compensation is
extremely important.
Compensation to victims is a recognized principle of law being enforced through
the ordinary civil courts. Under the law of torts the victims can claim compensation for
5.Keeton Et Al, Prosser & Keeton on Law of Torts, 1 at 2 (5th edn, 1984).
6. Carlson v. Green, 446 U.S. 14, 21 (1980).
7. Richard Posner. An Economic Analysis of Lawat P. 198.
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injury to the person or property suffered by them. It is now taking decades for the victims
to get a decree for damages or compensation through civil courts, which is resulting in so
much hardship to them. The emergence of compensatory jurisprudence in the light of
human rights philosophy is a positive signal indicating that the judiciary has undertaken
the task of protecting the right to life and personal liberty of all the people irrespective of
any express constitutional provision and of judicial precedents.
The question of compensation is different from that of judicial review. In latter
case, the impugned action of administration is quashed, and by and large, status quo ante
is restored. In the former case, ie, compensation, the party injured by actions of
administration gets monetary damages from the administration for the injury done to him.
There is the simple case of recognized tort being committed-especially
negligence- by a public employee in the course of his employment. The question them
arises: can the government be held liable to compensate the injured person on the
principle of vicarious liability?
In England, before 1947, the Crown enjoyed immunity from tortuous liability
because of the make in King can do no wrong which implies that neither any wrong can
be imputed to crown nor could it authorize any wrong8.
8. To mitigate the injustice arising out of immunity rule, government could pay
compensation in proper cases by setting the matter with the injured person. But this was a
matter of grace not as of right. When damages were awarded against a specific civil
servant, the government usually met his liability. Statutory corporations were held liable
for torts. Tamlin v. Hannaford, (1951) 1 K.B. 18.
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Another reason for the doctrine of immunity was that it was regarded as an
attribute of sovereignty that a state could not be sued in its courts without its consent. It
came to be realized in course of time that the rule had become outmoded in the content of
modern developments. The position was accordingly changed by the parliament enacting
the Crown Proceedings Act, 1947. The Act makes the Crown in principle for liable for
torts to the same extent as a private person of full age and capacity subject to such
exceptions, inter alia, as defense of realm, maintenance of armed forces and postal
services. The Crown thus becomes vicariously liable to a very large extent for the torts
committed by its servants. The Act was revolutionalized the law in England
9
.
The liability of the center or a state is thus co-terminus with that of the dominion
of India of a province before the constitution. Under section 176 of the Government of
India Act, 1935, this liability was co-extensive with that of the East India Company prior
to the Government of India Act,1858,section 65 of which declared that all persons shall
and may have and take the same suits, remedies and proceedings against the secretary of
state for India under section 32 of Government of India Act, 1858, section 65 of which
declared that all persons shall and may have and take the same suits, remedies and
proceedings, against the Secretary of State for India as they could have done against the
East India Company. This provision thus preserved against the government the same suits
and proceedings which were then available against the East India Company. Therefore, to
understand the present position as regards the extent of tortuous liability of government
of India it becomes necessary to know the extent to which the East India Company was
liable before 1858.
The Old View
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The company, to start with, was purely a mercantile body. Gradually, it acquired
9. Glanville Williams, Crown Proceedings (1947).
territories in India and also sovereign power to make war, peace and raise armies10. As it
was an autonomous corporation, having an existence of its own, and bearing no
relationship of servant or agent to the British Crown, the immunity enjoyed by the Crown
was never extended to it.
The leading case arising under section 65 of Government of India Act, 1858 was
P. & O. Steam Navigation Co. v. Secretary of State
11
decided in 1861 by Calcutta
Supreme Courtmade a claim for damages against the Secretary of State for injury to its
horse caused on the highway because of the negligence of some workmen employed in
the government Kinderpore Dockyard. The workmen were carrying a piece of iron funnel
causing from one part of the dockyard to another to take it on board a government
steamer which they are repairing. To do this, they had to cross a public highway running
through the dockyard area. While they were on the roadway, the plaintiffs horse-driven
carriage encountered the iron. Due to the negligence of the workmen, one of the horses
was injured. To determine the liability of the government, the court posed the question
whether the East India Company would have been liable in such a situation. After the
Charter Act of 1833,12 the company was acting in the dual capacity as a merchant, as well
as one exercising sovereign powers as a trustee of the Crown in respect of the territorial
possessions acquired by it. The court pointed out that the fact that the company exercised
sovereign powers as a delegate of the Crown immunity could not extend to it. As to the
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scope of actual liability of company, the court stated that where an act was done in
exercise of sovereign powers, no action would lie against it. The court
10. M.P. Jain, Outlines of Indian Legal history, Chap.II (1981)
11. 5 Bom. H.C.R. App. 1.
12. M.P. Jain, Supra note 1 at 405.
stated the proposition that if the company were allowed, for the purpose of government,
to engage is undertaking, such as the Bullock train and the conveyance of goods and
passengers for hire, it was only reasonable that they should do so, subject to the same
liabilities as individuals
13
. In other words, if the company were activities which could
be carried on by private persons, the company would be liable for torts of its servants
committed during the course of such activities.
No action would lie in the former case. The sovereign powers were defined as:
powers which cannot be lawfully exercised except by sovereign or private individuals
delegated by a sovereign to exercise them. On the basis of this reasoning, the court held
in the instant case that the company would have been liable for negligence of their
servants in repairing a river steamer or in doing any act in connection with such repairs.
Thus the Secretary of State was held liable in the instant case. P. & O. case thus laid
down two principles:
1. That apart from special statutory provisions, suits could have been brought against
East India Company and consequently, against the Secretary of State as successor to the
company, in respect of acts done in the conduct of undertakings which might be carried
on by private individuals without sovereign power;
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2. That the Secretary of State was not liable for anything done in the exercise of
sovereign powers.
TheP. & O. case was considered by the Madras High Court in Hari Bhanji14. The
facts of the case, briefly were that during the course of transit from Bombay to Madras
ports. The rate of duty on salt was enhanced and
13. 5 Bom H.C.R. App. 1 at 13.
14. Secretary of State v. Hari Bhanji. (1882) 5 I.L.R. Mad. 273.
merchant was called to pay the difference at the port of destination. He paid under protest
and instituted the suit for its recovery. The Court ruled that the immunity of East India
Company extended only to acts of state15 strictly so called and that the distinction based
on sovereign and non-sovereign functions of the East India Company was not well
founded. As regardsP. & O., it was said that it was an authority for the proposition that
the government was responsible for injuries in the course of transactions of a commercial
or private character, but that it did not exclude liability in other respects. This line of
reasoning bound some support in a few later cases16. In Secy. of State v. Cockraft17, the
plaintiff was injured by the negligent leaving of a heap of gravel on a military road
maintained by the public works department, over which he was walking. A suit for
damages against the government was held not maintainable by the Madras High Court
because the maintenance of roads, particularly, of military road, was one of the sovereign
and not private, functions of the government
Collecting land revenue was held to be a sovereign function. Even if the function
was delegated to certain officers under a statute, it would not cease to be sovereign
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functions. It the officers acted illegally and maliciously in discharging their functions, it
would be a complete defence for state to say that whatever was done was in the exercise
of the sovereign powers of state to say that whatever was done in exercise of sovereign
powers of the state and therefore state was not liable in damages.18 The court held in
15. Infra, 805.
16.Forrester v. Secy. of State of India, I.A. Supp. Vol., 55.
17. AIR 1915 Mad 993.
18.Andhra Pradesh v. Ankanna, AIR 1967 A.P. 41.
Gurucharan Kaur v. Madras Province
19
, where an action for damages was brought
against the government for wrongful confinement of plaintiff by police officials, that no
action could be maintained against government for torts committed by its servants. If in
passing the order in the performance of which the tort was committed the government
was discharging its governmental function as a sovereign.
The government was held liable for tortuous action of a railway servant
committed within course of his employment as servant committed within course of his
employment as running of railways was held to be not in exercise of sovereign powers.
Railways were held to be a commercial undertaking, an undertaking which private
individual can equally well undertake an undertaking not in exercise of sovereign
powers. Earth was removed from respondents land and was placed on the railway track
under constitutions. The court held the Government of India liable to pay damages to the
respondent for conversion of his property.20
Some goods were sent by railways from Agra to Bikaner. In the process of
transportation, the consignment was damaged and was delivered to consignee. The
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plaintiff claimed damages from the central government The High Court ultimately held
that it had no jurisdiction to try the cause of action. The court had jurisdiction on anyone
carrying on business within its territorial jurisdiction. The question was whether the
Government of India and was doing any business in running railways and court answered
in the negative. But some of the observations made by the court really cast a doubt
whether Government of India was doing any business in running railways and court
answered in negative. But some observations made by the
19. AIR 1942 Mad 539.
20.Maharaja Bose v. Governor in Council, AIR 1952 Cal 242.
court really cast a doubt whether the government could ever be held responsible to pay
damages to the plaintiff even in respect of its commercial activities although these
observations were made in the context of ascertaining the jurisdiction of the court and not
with respect to the question of liability. Indeed, in regard to the running of the railway
itself as such, it is possible to take the view that it forms an important part of governance
of the state.21 On the other hand; the Assam High Court held that the railways were one of
the governments commercial undertakings.22 The government was held liable to pay
damages when the forest range officers unjustifiably interfered with the right of the forest
purchaser to remove timber because the wrongful acts arose out of the exercise of
commercial or mercantile functions and not sovereign powers.23
The driver of road roller while driving the road roller fast and at an unusual speed
through a busy locality injured a boy. The accident was a direct result of the negligence
and rash driving of roller by the driver. Still the government was held not liable for
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paying any damages on the ground that the roller belonged to the PWD which was
entrusted with the work of constructing and maintaining highways which was a sovereign
function. The court said: making and maintenance of highways is public purpose and
duty of the government and not a commercial undertaking. 24 InDistt. Board, Bhagalpur
v. Bihar25, the court ruled that by running the treasury, the state cannot be said to be
engaged in the conduct of business and commercial undertaking as though the State is
conducting
21.Bata Shoe Co. v. India, AIR 1954 Bom 129.
22.Pratap Chander Biswas v. India, AIR 1956 Ass. 85.
23. Secy of State v. Sheoramyee Hanumantrao, AIR 1952 Nag 213.
24. K.Krishnamurthy v. Andhra Pradesh, AIR 1961 A.P. 283.
25. AIR 1954 Pat 259.
a sort of business of banking. The state was therefore held not liable for damages for loss
caused to the plaintiff due to the negligence of treasury personnel.
As a result of rash and negligent act of a driver of a military truck while engaged
in military duty in supplying meals to the military personal on duty, a person was
knocked down and run over. The Punjab High Court held in India v. Harbans Singh 26
that there was no cause of action against government for the negligence of its servant in
this situation. The government was held not liable for loss caused to the plaintiffs
property by mismanagement of manager appointed by the court of wards as the
jurisdiction exercised by this court was held to be essentially an exercise of sovereign
function27. The plaintiff deposited money in order to get license for Ganga shops. He
complained that he had not been given the license, that his money had not been returned
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to him, and that he had suffered damages for the want of license. The court held in Nobin
Chunder Dey v. Secy of State for India 28,that the giving of license and taking excise duty
was a matter entirely done in the exercise of sovereign powers, and so no action would
lie. Secy. of State for India v. Ramnath Bhatia,29 the government was held not liable for
the Deputy Collector paying by mistake surplus sale proceeds of taluk to the recorded
proprietor instead of a purchaser in execution of mortgage decree.
26. AIR 1959 Puny 39.
27. Secy of state v. Srigobinda Chaudhari, AIR 1932 Cat 834.
28. I.L.R. I Cal 11 (1875).
29. 37 C.W.N. 957.
VidyawatitoKasturilal
After the commencement of the constitution, The question of tortuous liability of
government came to be re-examined by the Supreme Court in Rajasthan v.
Vidyawati30.The driver of a jeep, owned and maintained by the state for official use of
collector, drove it rashly and negligently while taking it back from The workshop to the
residence of collector after repairs, and fatally injured a pedestrian. The state was sued for
damages. The state claimed immunity on the ground that the jeep was being maintained
in exercise of sovereign powers. The Supreme Court held that the state was vicariously
liable for the negligence of driver. The court raised the question: can it be said that when
the jeep was driven back from the repair shop to collectors place when the accident took
place, it was doing anything in connection with the exercise of sovereign power of the
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state? The Supreme Court ruled that the tortuous act had been committed, circumstances
wholly dissociated from the exercise of sovereign power? and approved the following
observation of the High Court: the state is in no better position in so far as it supplies
cars and keeps drivers for its civil service. It may be clarified that we are not here
considering the case of drivers employed by the state for driving whiles which are
utilized for military or public service.31 Referring to theP. & O. case, the court derived
the preposition that the government would be liable for damages occasioned by The
negligence of was such as would render an ordinary employer liable. Though not very
articulate, the court seemed to be suggesting that it would not hold the government
immune from the
30. AIR 1962 SC 933.
31. AIR 1962 SC 935.
tortious acts of its servants whether committed in the exercise of sovereign or non-
sovereign functions.
Vidyawati might well have been the precursor of a new trend in the area of state
liability, but then the efficacy of views mentioned therein was whittled down by the
Supreme Court in the next case, Kasturi Lal Ralia Ram v. State of U.P32, here the police
arrested Ralia Ram, a partner in the appellant firm, and seized some good from him on
the suspicion that it was a stolen property. The gold was kept in the government
Malkhana but was misappropriated by the chief constable in change of the Malkhana who
fled to Pakistan. The authorities thus committed gross negligence in keeping the keeping
the gold in safe custody. Ralia Ram was acquitted of the charge .The question arose
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whether the state would be liable to compensate appellants for the loss caused to them by
the police officers employed by it.
The appellant argued, on the basis ofVidyawati that once negligence of the police
officers was established, there should be no difficulty in decreeing his claim. The court
conceded in Kasturi Lal that there were certain observations in Vidyawati which
supported such an argument but court went back to P. & O. case. It held that the police
officers were grossly negligent in taking care of the seized gold. Nevertheless, the
government was held not liable as the activity involved was a sovereign activity. The
court affirmed the distinction made in the P. & O. case, between sovereign & non-
sovereign functions in the following terms:
P. & O. case recognizes a material distinction between acts committed by the
32. AIR 1965 SC 1039.
servants employed by the state where such acts are referable to the exercise of sovereign
powers delegated to the public servants, and acts committed by public servants which are
not referable to the delegation of any sovereign powers.
The Supreme Court thus enunciated the principle as follows:
If a tortuous act is committed by a public servant and it gives rise to a claim for
damages, the question to ask is: was the tortuous act committed by the public servant in
discharge of statutory functions which are referable to, and ultimately based on, the
delegation of sovereign powers of the state to such public servant? If the answer is in
affirmative, the actions for damages for loss caused by such tortuous act will not lie. On
the other hand, if the tortuous act has been committed by a public servant in discharge of
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duties assigned to him not by virtue of the delegation of sovereign power, an action for
damages would lie.33
The court maintained that the distinction had been uniformly followed in India by
judicial decisions. The court explained away the ruling in the Vidyawati case by saying
that when the government employee was driving the car from workshop on the
collectors residence, he was employed on a task or an undertaking not referable to the
states sovereign power. In fact, said the court, the employment of a driver to drive
jeep car for the use of a civil servant is itself an activity which is not connected in any
manner with the sovereign power of state at all.
34
On the other hand, power to arrest a
person, to search him and to seize property found on him, are powers which can be
properly characterized as sovereign powers. In Kasturi Lal case, the act of negligence
giving rise
33. AIR 1965 SC 1039 at 1046.
34. Ibidat 1048.
to the claim of damages had been committed by the police officers while dealing with
property which they had seized in exercise of their statutory powers which could properly
be characterized as falling within the concept of sovereign power and so no claim for
damages could be sustained. The court warned that the concept of sovereign functions
should not be extended unduly by the courts. It said:
when the state pleads immunity against claims for damages resulting from
injury caused by negligent acts of its servants, the area of employment referable to
sovereign powers must be strictly determined.
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The court emphasized upon the significance and importance of making such a
distinction at the present time when, in pursuit of their welfare ideal, the various
governments naturally and legitimately enter into many commercial and other
undertakings and activities which have no relation with traditional concept of
governmental activities in which the exercise of sovereign power is involved. It was
necessary to limit the area of sovereign power, so that the tortuous acts committed in
relation to non-governmental and non-sovereign activities did not go uncompensated.
The Supreme Court did underline however that the law regarding the scope of tortuous
liability of the state was in a very unsatisfactory condition and suggested that a law be
enacted to deal with the problem on the lines of the Crown Proceedings Act, 1947.
The Judiciary has not laid down any clear test to determine the character of a
function as sovereign or non-sovereign. The test evolved so far, whether the activity
could have been carried on by a private individual or not, may not be of much help in
particular factual situation. For instance, can it not be argued that the specific activity
involved in Kasturi Lal case was that of bailment, 35 i.e, keeping the goods of another
safely for a period- an activity capable of being undertaken by a private individual, 36 On
the other hand, it could be argued in the Vidyawati case that the vehicle was maintained
for the use of collector, and administrator, who was also a Distt. Magistrate and had
police duties to perform- all these activities could legitimately be characterized as
sovereign. and non sovereign functions is extremely amorphous.
To distinguish a sovereign from a non-sovereign function, it does not seem
relevant whether the power has been conferred by a statute or not. Although the Supreme
Court did say in Kasturi Lal that the power to arrest a person [etc] are powers
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conferred on the specific officers by statute, but this is only an obiter dicta. In the instant
case, the function of custody and disposal of seized property was subject to statutory
basis, and, conversely, it may be regarded as non-sovereign even though it has a statutory
basis. An example of former may be the power of government to enter into a treaty with a
foreign country, and that of the latter, the government engaging in a commercial activity
under a statute.
Changing Concept of the purpose and functions of State
Political theoreticians from ancient times through middle ages and modern times,
have provided divergent and sometimes diametrically opposite ideas about the nature
purpose and functions and relationship with individuals of the state. Aristotle in ancient
times had given us a broad concept and justification for the origin of the state with an
ethical purpose of preservation of life and for working for the sake of best life not in the
35. Cf. Gujarat v. Menon Mahomed Haji Hasan, AIR 1967 SC 1885.
36. Black shield, Tortious liability of Govt: A Jurisprudential case note & J.I.L.I658
(1966)
sense of material prosperity only but promoting active life in the cause of noble aims and
deeds, concerning intellect and character. Hegel propounded the theory that state is an
end in itself. He observed, the state being an end in itself is provided with maximum of
rights over against the individual citizens, whose highest duty is to the members of the
state. He believed that the state has got its own existence, nature and destiny and would
seek its own perfection. Hence, Hegels philosophy leads to the view that the state is
immune, unaccountable and has no duty or liability to its citizens.
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On the other hand Locke propounds that the justification for the existence and
exercise of the power by the state lies in the preservation of lives, liberties and estates.
Hence, the state exists for the preservation of natural rights and Locke supports the view
that the state has got a duty towards the citizens if not liability. Adam Smith postulated
three duties of the state, namely: Firstly, protection of the society from external danger,
Secondly, protection of individual and wherever violations take place to administer
justice.
Thirdly, Organization and maintenance of public utility services which private
individual may not or can not do in view of the absence of profit in such enterprises. So
Adam Smith also recognizes the duty of the state to a limited which may logically extend
to some sort of the liability of the state.
Harold, J. Laski, one of the greatest progressive political thinkers of the 20 th
century, developed the theory of utilitarianism with a broader perspective and
recognition, preservation and protection of the rights of men by the exercise of which the
individuals are enabled to realize the best, that is in themselves and consequently
contribute for the realization of social good on the largest possible scale. Laski elaborates
and categorizes the rights: economic rights including right to work or maintenance in
absence of work, political rights enabling and allowing the citizens to have a share in
decision making process of the state; other rights like access to judicial remedy, freedom
of conscience and limited property. He considers that the allegiance of the citizens of a
state is dependent upon the performance of the duty of the state. Obedience and co-
operation of state is co-related to the performance of the state in giving increasing
substance to the rights. The failure on the part of the state may give justification to the
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people to withdraw their cooperation and later to resist, of course, peacefully and
constitutionally in an open democratic society. Hence, Laskis view clearly postulates
duties and liabilities of the state, vis--vis, the citizens, and provides a firm basis for
government liability.
Changing theories of the liability of the state
It is clear from the above account of the changing conceptions of the state that no
theory of the state can be accepted universally in space-time continuum. The evolution of
the concepts and practices of government liability provides us broadly three different
stages:
In 1st phase, there was no govt. liability at all. Total immunity was claimed by the
government.
In IInd stage, limited liability was accepted.
In IIIrd and present stage, we can easily perceive the expansion of government liability in
three dimensions of contractual tortuous and criminal actions of state officials.
During the 1st stage, basis of the negation of the government liability was in a way
the divine right theory of the king to rule as in case of Louise XIV who identified himself
with the state and claimed the right to rule from the God as his agent and hence he was
answerable only to the God not to the people. This philosophy was exploded successfully
by the social contract theory of the state propounded by Rousseau, Locke and Hobbes.
Another thesis is that the state is established for the good of the people. State is the source
of law. State is the maker of law. State executes law and administers justice. King is the
protector of citizens. Hence, King can do no wrong because King appoints officials for
the implementation of laws and if the officials violate law, they are not acting on the
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behalf of government at the best the officials may be personally liable and not the King or
the government. Yet another approach is that the state is an abstract entity, it cannot have
mens rea, and hence, it is not liable. It is also agreed that state being the authority to
punish; it is ridiculous to postulate the state punishing itself. Another impossibility
suggested is that if governmental criminal liability is accepted punishment can not be
administered; as government cannot be put in jail nor it can be executed. In the case of
imposition of fine imposed on government to go its own coffers, and results in absurdity.
All these ideas give justification for the government to escape from liability it maxist
concept of state is examined, it unravels the mystery of the secret of governmental
immunity. According to Marx, the society is divided into classes: haves and have-nots.
The owners of the instrument of production are also directly or indirectly control and
exercise the power of the state. The state is used to serve the exercise the power of the
state. The state is used to serve the exercise the power of the state and the purpose of the
state which controls the economy. And hence, the government is made immune against
the claims of have-not, though it appears that the disability on the part the citizens are
expressed in general terms applicable to all.
The theory of state immunity was based on the doctrine of Royal Infallibility
and State being above the law. However, during the second stage of development, the
immunity of state officials was withdrawn step by step though even today it continues in
a narrow sphere in case of the head of the state and few others in the performance of their
duties. Ever since the reign of doctrine of rule of law which does not permit unequal
treatment of state officials and private citizens and subjects state officials to law and
postulates the exercise of the power by government subjects to law, it is realized that
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government immunity is inconsistent or unwritten. Consequently, all violations of law by
officials attract liability- but limited to the liability of the officials on the ground that they
are hence governmental institution the liability was avoided. However, this approach has
not affected the development towards increasing governmental liability. On the other
hand, through judicial interpretations, government liability is extended in case of
violation of criminal law. It is agreed that government has to pay reparations for the
wrongs committed by its officials to alleviate the harm suffered by the citizens. For
sometimes, a peculiar distinction is made between sovereign functions and non-sovereign
functions of the state and government liability was limited to non-sovereign functions and
immunity is continued in case of sovereign functions. In recent times, this distinction is
not strictly adhered to an extension of liability to some aspects of sovereign functions can
also be perceived.
The theory of vicarious liability is applied to facilitate the extension of liability to
the government treating its officials as agents. Thus, starting from total immunity of the
state and later extending liability to the officials of the state and then extending to the
government. In the performance of non-sovereign functions also and from another aspect
starting from liability of government. In contractual relations and then extending to civil
wrongs and later taking a step further in imposing criminal liability on the government.
By compelling it to pay reparations, though no new conceptional frame work is provided,
the content of the concepts of government immunity has undergone a sea change. In the
light of these radical changes legal theoreticians have to attempt to capture the essence of
the drastic changes by boldly propounding new doctrines.
Later Developments
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The present-day position in this area appears to be that while the courts do still
maintain the old distinction between sovereign and non-sovereign functions for the
purpose of governmental tortuous liability, in practice, however, a great transformation
has come about in the judicial attitude in so far as the courts take a very restrictive view
of the so-called sovereign functions. The courts characterize most of the governmental
activities as non-sovereign. Thus by restricting the concept of sovereign functions, the
courts have been able to expand the area of governmental tortuous liability. As the
Madhya Pradesh High Court has elucidated after a review of the case law. 37
These cases show that the traditional sovereign functions are making of laws, the
administrative of justice, the maintenance of order, the repression of crime, carrying on of
war, the making of taking treaties of peace and other consequential functions. Whether
this list be exhaustive or not, it is at least clear that the socio-economic and welfare
activities undertaken by a modern state are not included in the traditional sovereign
functions
The result of this judicial approach has been to bring the old law in line with the
needs of present day without formally amending the same through the legislature. Thus,
while the basis of the law still remains traditional, the law as such has assumed a modern
complexion and is in tune with the contemporary social needs. The creative judicial
process of adjusting the old law to new situations may be depicted and illustrated through
some recent judicial pronouncement. The state government constructed a reservoir for
facilitating the supply of drinking water to the residents of a town. Damages was caused
to the adjoining land of the plaintiff by overflow of the reservoir, for a channel to carry
the overflow
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37.Association Pool v. Radhabai, AIR 1976 M.P. 164.
of water from reservoir had not been completed by the state. InMysore v. Ramchandra38,
the state was held liable to pay damages to the plaintiff. Construction of the reservoir,
held the court, could not be considered as an act of exercise of foreign power. It was a
welfare act for the betterment of people of the state and not a sovereign act.
An employee of the Bihar state was crossing the river kosi in a boat belonging to
the State Kosi Project Department. He was travelling in the course of this employment.
The boat capsized and he was drowned. The father of deceased sued the state for
damages for death of his son due to the negligent act of the state officials in not providing
the boat with any life-saving device.
The Patna High Court in Bihar v. S.K. Mukherji39 noted that the rules framed
under the Bengal Ferries Act made no specific mention of provision of a life saving
device. Nevertheless, the court held the state liable. Kosi is a turbulent river and crossing
the river is dangerous. Therefore, it was obligatory on the part of the state to provide life
saving device on the boat in question and its failure showed the lack of reasonable care
and precaution. The liability of the master is not limited to failure to perform statutory
obligations so as to make him liable for negligence but the master owes a duty to his
servants to see that reasonable care is taken for the safety of his employees.
The state was held liable to pay damages to the respondent for his malicious
prosecution by the state employees.40
38. AIR 1972 Bom 93.
39. AIR 1976 Pat 24.
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40. State v. Rameshwer Prasad, AIR 1980 Pat 267.
Transportation
A large number of cases have occurred pertaining to claims of damages against
state by individuals for injuries caused to them due to the negligence of drivers of state
transport. As already stated, in Vidyawati, the state was held liable for the accident
caused by the driver of jeep owned and maintained by the state for the official use of the
collector.41 In Kerala v. K. Cheru Babu,42 the advisor to the governor went on a private
visit in a government jeep escorted by the government driver who knocked down the
defendant causing multiple fractures. The state was held liable as the private visit did not
entail performance of any sovereign function. Transporting a patient to the hospital in a
fire service ambulance would not make it a sovereign function as it could be done as
much by a private person as by the state.43 A government servant, with his father and his
family, was traveling in a government jeep driven by the government driver. Both the
government servant and his father succumbed to their injuries in an accident involving
the jeep because of the negligence of driver. The government was held vicariously liable
to pay compensation to the widow of the deceased father of the government servant, for
her husbands death. The fact that he was an unauthorized occupant of the jeep was
regarded as immaterial.44 In words of court in Satya Narain v. Distt. Engineer, P. W. D.45
that the plying of motorbuses by government by way of commercial activity would not
amount to running it on a public service.
41. Supra, 768.
42. AIR 1978 Ker 43.
43. Tamil Nadu v. M.N. Shamsunder(1981) 1 MLJ 1.7
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44. Orissa v. Madhwilata, AIR 1981 Noc 104.
45. AIR 1962 SC 1161.
The Court says:
An activity however beneficial to the people and however useful cannot, in our
opinion, be reasonably regarded as public service if it is of a type which may be carried
on by private individuals and is carried on by government with a distinct profit motive.
InIndia v. Jasso,46 a fatal accident was caused by the negligence of a driver of a
military truck which was carrying coal to Army General Headquarters in Shimla. The
Government of India was held liable to pay damages as it was a routine task and carrying
coal could not be regarded as something being done in the exercise of sovereign power.
Similarly, government was held liable to pay compensation when an accident occurred
when a military truck was driving to the railway station to bring jawans of army from the
station to the unit headquarters, 47 when a military truck was going for bringing
vegetables for prisoners of war.48 In Iqbal Kaur v. Chief of Army Staff,49 an accident
occurred due to negligent driving by a sepoy of a government truck who was going to
impart training in motor driving to new M. T. recruits. The Union of India was held
responsible for damages as function was held to be not an exercise of sovereign power. In
Iqbal Kaur v. Chief of Army Staff, 50 an accident occurred due to negligence driving by a
sepoy of a government truck who was going to impart training in motor driving to new
M. T. recruits. The Union of India was held responsible for damages as the function was
held to be not an exercise of sovereign
46. AIR 1962 Punj 315.
47.India v. Savita Sharma, AIR 1979 J&K 6.
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48.India v. Neelam Dayaram, 1979 M.P.L.J. 732.
49. AIR 1978 All 417.
50. AIR 1978 All 417.
power. The state was held liable when the negligent and rash driving by a military driver
resulted in the death of a boy while the driver was bringing back officers from the place
of exercise to the college of combat as the function of transportation was not such as
could not be lawfully exercised except by the sovereign or a person by virtue of
delegation of sovereign rights. A head-on collision took place between a private vehicle
and water tanker of Border Security Force. The Union of India was held liable in
damages as the act of the B.S.F. personnel in driving the tanker negligently was not
referable to any delegation of sovereign powers.51
Government was held liable to pay compensation when an accident occurred
when a military truck was driving to the railway station to bring jawans of army from the
station to the unit headquarters 52 or when an accident occurred when a military truck was
going for bringing vegetable for prisoners of war.53 In the last case, the court said that the
jawans could have been transported in a private bus or truck. The act of their
transportation could have been performed in the ultimate analysis by private individuals
in their vehicles. Only such functions could be characterized as sovereign as could not
be performed by private individuals. In all these cases, damages were awarded by the
courts against the Government of India for injuries caused by negligence of military
vehicle.
51.Nandram Neeralal v. India, AIR 1978 M.P. 209.
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52.India v. Savita Sharma, AIR 1979 J&K 6.
53.India v. Neelam Dayaram, 1979 M.P.L.J. 732.
The function of maintaining law and order has been held to be a sovereign
function. In State v. Datta mal,54 the court refused to award any damages for loss of life
or property resulting from police firing ordered to quell a riot because it was a sovereign
function of the state. This would still be so even when it was in excess of directions of the
authority ordering the same. In Orissa v. Padamalochan, 55 plaintiffs claim for damages
against the state for injuries sustained by him as a result of police lathi-charge was
dismissed. The police was protecting the office of S.D.O. where some student trouble
was apprehended. The lathi-charge was unwarranted as it was resorted to without
magisterial order.56 The plaintiff was not a member of any unlawful mob. Nevertheless,
his claim was rejected on the ground that even if lathi-charge was illegal, it was
performed in exercise of sovereign function and so the state could not be held liable for
damages. The court rejected the contention that only statutory functions could be
regarded as sovereign.
Recently, a new judicial trend has become visible in the area of personal liberty.
Arrest and detention could ordinarily be characterized as sovereign function according
to the traditional classification. As such, a person who suffers undue detention or
imprisonment at the hands of the government may not be entitled to any monetary
compensation. The courts can only quash the arrest or detention if not according to law.
The constitution has article 21 which guarantees that no person shall be deprived of his
life or personal liberty except in accordance with procedure established by law. Recently,
the
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54. AIR 1967 M.P. 246.
55. AIR 1975 Ori 41.
56. Section 127-130 of Cr P.C.
Supreme Court has taken recourse to a dynamic interpretation of article 21 and given it a
new orientation.57 As an offshoot thereof, the court has also considered the question of
giving compensation to one who to may have unduly suffered detention or bodily harm.
In Khatri v. State of Bihar 58 (the Bhagalpur Blinding case), it was alleged that
police had blinded certain prisoners and the state was liable to pay compensation to them.
Since the matter as to the responsibility of police officers was still under investigation,
the court did not decide the issue. However, it did raise an extremely significant
constitutional question, viz., if the state deprives a person of his life or personal liberty in
violation of the right guaranteed by article 21, can the court grant relief to the person who
has suffered such deprivation? Bhagwati J. said: Why should the court not be prepared
to forge new tools and devise new remedies for the purpose of vindicating the most
precious fundamental right to life and personal liberty.59 The question involves the
exploration of a new dimension of the right to life and personal liberty. An Important
question considered by court in khatri was: would the state be liable to pay compensation
for the acts of its servants outside the scope of their power and authority affecting life or
personal liberty of a person and thus infringing article 21? The court answered in the
affirmative saying that if it were not so, article 21 would be reduced to a nullity, a mere
rope of sand, for, on this view, if the officer is acting according to law there would be
no breach of article 21 and if he is acting without the authority of law, the state would be
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able to contend that it is not responsible for his action and therefore there is no violation
of article 21.
57.Maneka Gandhi v. India, AIR 1978 SC 597.
58. AIR 1981 SC 928.
59. Ibid, at 930.
InRudal Shah v. State of Bihar,60 in a writ petition, the Supreme Court awarded
damages of Rs. 35000/- against the state because the petitioner was kept in jail for 14
years after his acquittal by the criminal court. The facts in Rudal Shah revealed a sordid
and disturbing state of affairs for which the responsibility was squarely on the
administration. The petitioner was acquitted by the Session Court, Muzaffarpur, Bihar, in
June 1968, but he was moved on his behalf in the Supreme Court. The state authorities
failed to place before the court any satisfactory material for his continued detention for
such a long period. The question before the Supreme Court was whether it could grant
some compensation under article 32 for his wrongful detention. Under the traditional
approach, the only remedy was to file a suit to recover damages from the government, but
the difficulties of a suitor filing such a suit are innumerable. The court felt that if it
refused to pass an order of compensation in favour of petitioner, It will be doing merely
lip service to fundamental right to liberty which the state government has so grossly
violated.
In Sebastian M. Hongray v. India, 61 the Supreme Court by a writ of habeas
corpus required government of India to produce two persons before it. These two persons
were taken to the military camp by the jawans of the army. The government failed to
produce them expressing its inability to do so. The governments explanation was found
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by the court to be untenable and incorrect. The truth was that these persons had met an
unnatural death. The Supreme Court, in the circumstances, keeping in view the torture,
agony and mental oppression undergone by the wives of the said persons, instead of
imposing a fine on the government for
60. AIR 1983 SC 1086.
61. AIR 1984 SC 1026.
civil contempt of the court, required that as a measure of exemplary costs as is
permissible in such cases, the government must pay Rs. 1 lakh to each of the aforesaid
women. In a judgment delivered on Aug 12, 1983 in Oraon v. Bihar, the Supreme Court
awarded Rs. 15000 as compensation to an under trial who was detained in a lunatic
asylum for 6 years after he had been certified as fit for discharge.62
Statutory Functions
A number of statutory powers is conferred on the administration in modern times.
These powers are of various types: regulatory, promotional, developmental, licensing etc.
The exercise of these powers may, and usually does, interfere with private rights. At
times, the law may provide for compensation when private rights are interfered with
under the law, e.g., compensation is payable for compulsory acquisition of property under
the land Acquisition Act by the state. In many other cases, the statute provides for no
compensation. The main question to be considered there is: what are the rights of an
individual to be compensated by the government for the loss caused to him by the
exercise of statutory powers. This question has a number of aspects. The law in the area
is still in the developmental stage.
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The first principle seems to be that if the loss caused to the individual is the
inevitable result of the exercise of statutory functions, there can be no claim for damages.
This principal is illustrated by the decision of the House of Lords in Allen v. Gulf oil
Refining Ltd63. This case was concerned with allegation of nuisance by the plaintiff by
smell, noise and vibrations because of the construction of an oil-refinery nearby. The
plaintiffs
62. The Hindustan Times, 13 Aug, 1983.
63. (1980) Q.B. 156.
action was one of the 53 actions brought by local residents Gulf, an oil company. Gulf
pleaded that its activities were authorized by an Act of parliament64 and so it was immune
from liability in nuisance. The court of appeal held Gulf liable for nuisance. Lord
Dennings suggested an entirely new approach to the statutory interpretation to take in the
contemporary realties. He pleaded that the modern statutes be interpreted on a new
principle rather than on the 19th century principles, viz., wherever any work is undertaken
under a statutory authority which may cause damages to the people living in the
neighbourhood, it should be done to innocent people without redress whether or not the
undertakers use due diligence. Statutory authority may enable the under takers to
construct and operate the undertaking but does not excuse them from paying
compensation for injury done to those living in the neighborhood. Suppose there is an
explosion in the refinery: the undertakers ought to compensate those who killed or whose
property is damaged. On appeal, the House of Lords reversed the court of Appeal. The
House of Lords based itself on statutory authority. It ruled that the statute conferred
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immunity against proceedings for any nuisance inevitably resulting from the refinery
which had been constructed in public interest. The House of Lords was not however
unanimous and divided to one. The view adopted by the majority is traditional one
regarding absence of negligence. There is however one ray of hope is the observation of
Lord Edmund- Davis on the question of what is to be regarded as the inevitable result of
an authorized activity: it would be for the defendant to establish that any proved
nuisance was wholly unavoidable, and this quite regardless of the expense which might
necessarily be involved
64. The relevant Act had empowered the company to acquired land and construct works
thereon, for the purpose of building an oil refinery.
in its avoidance. This view may deprive many statutory undertakers of their defence,
since there are relatively few nuisances which can not be cured by the application of
unlimited sums.
As far as negligence in the exercise of statutory powers is concerned, it is to
assume that statute impose a duty to take reasonable care to ensure that no necessary
damage is done while exercising the power. It is the cardinal principle to be observed by
the administration while exercising its statutory powers that it must exercise them with
reasonable care and it must not act negligently or maliciously. If the administration acts
negligently or maliciously then it may be liable. On the basis of English decisions, the
following classification is important in answering the question whether the public
authorities are liable for negligence-
(i) Policy or planning level, i.e, taking a decision as to what ought to be done;
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(ii) Operational level or operation of the said policy.
The distinction between planning or policy decision and operational decision may
be illustrated by two English cases.
In Dutton65, the councils building inspector had inspected the executions for
buildings foundations and approved them. The foundations were then laid and the
building was completed. The foundations were partly on the site of an old rubbish tip and
should not have been passed by the councils inspector. The house was sold to the
plaintiff. It later subsided causing serious damage to the structure. It was held that the
local authority was liable to the plaintiff, because its inspector, acting under the bye-laws
of the authority, had committed negligence in inspecting the foundations of the house.
Lord
65.Dutton v. Bognor Registered Urban Distt. Council, (1972) 1 Q.B. 373.
M.R.Denning in his judgment said that a local council entrusted with controlling most
facts of building activities had a duty to exercise its powers carefully. Breach of that duty
gave rise to a negligent action.66
In anns,67 the foundations of the building were 30 inches deep whereas the
builders plans and deposited with the local authority showed 36 inches or deeper. The
plaintiffs, who were lessees were assured by the authority that the inspection the
foundations must have been carried out but it was unable to trace any records of this. The
matter reached the House of Lords on a preliminary point of law as to the duty of care on
the part of local authority. The main judgment was that of Lord Wilberforce who said that
Lord Dennings inDutton puts the duty too high.
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Within the limits of this policy decision, the operational area is concerned with
the manner of carrying out inspection. The authority would be liable to plaintiffs for
breach of duty if it were proved that its inspector, having assumed the duty of inspecting
the foundation, acting otherwise than in the bonofide exercise of discretion under the Act,
did not exercise reasonable care. P.P. Craig illustrates the principle thus: if, as a matter
of policy, the local authority decides that their inspector can only carried out certain
limited tests, the cost of more extensive checks being prohibitive, the individual could not
claim compensation simply because a further test would have revealed the defect.
However, if the inspector was simply careless in performing the tests prescribed liability
would ensue. This would be purely operation negligence.68
66. According to Wade, Epoch-making case denotes a remarkable extension of the law of
official liability & has opened up a whole new area of actionable negligence.Admn. Law.
658-9 (1982)
67.Anns v. Marton London Borough Council, (1977) 2 All E.R. 492.
68. P.P. Craig, Adm. Law, 539 (1982).
As far as failure to exercise discretion is concerned, as Wade says, It used to be a
familiar proposition that mere failure to exercise a power was not actionable.69 This is no
longer true. Whether an authority is liable in damages for its failure to act will depend
upon whether there was a duty to act or not, and if it was a statutory power, whether it
acted negligently in not acting. To illustrate, in the above situation, if the authority
decides that it would not conduct any inspection at all, the liability would depend on
whether in taking the decision the authority acted negligently or not, or action was merely
ultra vires. Craig says that in such a case the question before the court would be: Did the
local authority take reasonable care in coming to the conclusion not to inspect at all...?
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Ultra vires will not help where there has been negligence70 If the action of the
authority is deliberately wrongful or malicious, then there is no doubt that it will be liable
in damages.71
An ultra vires action on the part of an administrative authority can be set aside by
the court. But in many cases, the offending action may cause the affected person
pecuniary loss before it is annulled. For example, business license is cancelled without
giving the license a hearing. This action may be quashed on the ground of failure of
natural justice. But for the duration the license remained cancelled, the person could not
carry on his business and thereby suffered loss. What happens to this loss? Who shall
make it good? There are still many hurdles in the way of development of law relating to
liability for loss arising from ultra vires action on the part of bureaucratic machine.
69. Wade, Admn. Law, 669 (1982).
70. Supra note 67 at 449.
71. Crould,Damages as Remedy in Admn Law, (1972) 5 N.Z.U.L.R. 105.
Merely because an administrative action is struck down by the court on the ground of
invalidity, it is not regarded as enough in itself to impose liability on the administration
for the economic loss caused to the plaintiff. This is well illustrated byDunlop.72
InDunlop, the plaintiff purchased land which he intended to sell for development
and incurred a bank overdraft in doing so. The council passed two resolutions, one fixing
a building line for the plaintiffs land and other imposing a three story height restriction.
The plaintiff was subsequently informed by the architect that it would not be financially
worthwhile to develop the land in compliance with resolution.
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The plaintiff obtained a declaration from Supreme Court in Australia that
resolutions were invalid and void because of failure of natural justice and ultra vires.
Thereafter, the plaintiff applied for and was granted planning permission and he later sold
the land. Then he brought an action against the council arguing that he has suffered loss
as a result of councils negligence. Lord Diplock also made it clear that the point of law
involved was difficult and the solicitors had not been negligent in the giving of their
advice even though the advice was later found to be wrong.
Thus Lord Diplock has retorted that a layman, who has suffered loss from the
breach of its power by the administration, should have known his legal rights. He cannot,
therefore, legitimately complain when he suffers the consequences of having failed to
exercise his rights. While it may be a reasonable expectation that a public authority ought
to be aware of the effect of exercising a statutory power not in accordance with certain
requirements, it may be thought that Lord Diplock credits an average layman with far
greater knowledge of matters legal than what in practice and in reality he possesses.73
72.Dunlop v. Woolahra Municipal Council, (1981) 1 All ER 1202.
73. (1981) 12 students L.R. Para 49.
Damages may be payable when there is misuse of power. In a notable Canadian
case, damages were recovered for the wrongful revocation of a liquor license. In this
case, the Supreme Court of Canada awarded damages against the Prime Minister of
Quebec personally for directing the cancellation of a restaurant owners liquor license on
the ground which was irrelevant and illegal.74
The case illustrates the principle that damages may be payable when there is
malicious abuse of power or deliberate of injurious wrongdoing without legal
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justification. This is known as the tort of misfeasance in public officer and it includes
malicious abuse of power, deliberate maladministration, and other unlawful acts causing
injury75. The principle has been laid down as follows: 76
If a public officer abuses his office, either by an act of omission or commission,
and action may be maintained against such public officer.
In case of an ultra vires action, unless there is malice or negligence, the state is
not held to be liable. The basis of this rule is that the officers should act fearlessly in
discharge of their official functions. Till a case is decided by the court, it remains
uncertain whether the officer has exceeded the power or not. From time to time public
interest calls for action which may later turn out to be founded on a mistake, it may act as
deterrent on an official to take any action at all.
However, there in a view that government must be held liable for loss
resulting from ultra vires action. Lord Wilberforce pointed out this defect in the
law, viz,
74.Roncarelli v. Duplessis, (1959) 16 DLR (2d) 689.
75. Wade, Admn Law, 669.
76.Farrington v. Thomson, (1959) V. R. 286.
An unwillingness to accept that a subject should be indemnified for the loss sustained
by an invalid administrative action. He further remarked: 77
In more developed legal systems this particular difficulty does not arise. Such
systems give indemnity to persons injured by illegal acts of the administration.
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A view is being expressed that if a statutory power is exercised unlawfully
causing economic loss, compensation should be payable. What is being suggested is a
statutorily based remedy in damages for losses suffered as a result of unlawful
administrative acts or decisions. The administration acts in the name of public good and
the community benefits from its actions. Then why should the individual suffer the loss
from unlawful administrative acts or decision? Why should not the cost of these mistakes
be shared by the community in whose name they are made? 78 Any such remedy, if
provided, would lend strength to the system of judicial review. An action in damages
would provide an indirect way of controlling the use of discretionary power or an
alternative method of challenging the administrative action.79
An individual can recover damages for sustaining injury because of non-
performance of its statutory duty. There is no need to prove malice or negligence on the
part of authority.80
In the United States, the Federal Torts Claim Act, 1946, exempts the government
from
77.Hoffman-La-Roche V. Secy of State for Trade, (1975) A. C. 295, 358-9.
78.Public & Admn. Law Reform committee, Report on Damages in Admn. Law, 2 (New
Zealand) 1980 (Minority view).
79. Harlow, Compensation and Government Torts, 89-101.
80. Wade, Admn. Law, 666-7.
liability for torts committed by the officials in the exercise of discretionary powers. Thus
the American Statute says that the state shall not be liable in respect of:
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Any claim based upon an act or omission of an employee of the government,
exercising due care, in the execution of statute or regulation, whether or not such statute
or regulation be valid, or based upon the exercise or performance or the failure to
exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal Agency or an employee of the government, whether or not
the discretion involved be abused.
A claim for damages may also lie for breach of a statutory duty intended to
protect a person in the position of the particular plaintiff. When the duty is specifically
directed for the benefit of an individual and it is shown that the statute intended to give a
right to its enforcement, an action for damages is to make more effective, for the benefit
of the injured the statutory duty. It is thus an effective sanction. But where a public
authority violates a statutory public or general duty, say, a duty to provide education, no
action may lie. The reason is that the very foundation of an infringed by breach of a
certain duty. No rights are created in favour of a private person in respect of public
duties.81
The Indian cases depict a similar approach. For example in Gujarat v. Memon
Mahomed Haji Hasan,82 the customs officials had seized two vehicles of plaintiff. Later,
the court held the seizure to be wrongful. In the mean time, the vehicles were left in the
open and considerable damaged and were wrongly disposed of by the officials. The
government
81. Street,Law of Torts, 270-71 (1963).
82. AIR 1967 SC 1885.
was held liable to pay to the plaintiff the value of the vehicles.
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The government was held liable to pay to the plaintiff the value of vehicles. The
court stated that it was obligatory on the part of the government to return the vehicles to
the owner, and until the order of confiscation became final there was an implied
obligation to preserve the property intact and for that purpose to take such care of it as a
reasonable person in like circumstances is expected to take.83
As far as malicious exercise of power is concerned, the courts do award damages
for the wrongful administrative action, provided the complainant himself was not acting
contrary to law.84
The Indian law does not at present provide any remedy for the loss caused to an
individual by an action of the government which can neither be characterized as illegal
nor as negligent. Such a situation arose in K. Nagireddi v. Government of Andhra
Pradesh,85 A person having an orchard suffered extensive damage due to percolation of
water in a canal constructed by the state government. His case was that his orchard had
been damaged owing to the faulty laying of canal and that it was not cemented or lined at
the floor and therefore the water escaped through percolation and seepage in the orchard.
Dismissing his suit for damages, the High Court held:
1. There was no faulty lying of the canal by the state.
2. There was no negligence in laying the same.
3. There was no legal obligation on the government to cement the floor of the canal.
83. AIR 1967 SC 1889.
84.Prem Lal v. U. P. Govt., Infra, 795.
85. AIR 1982 A. P. 118.
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The facts of the case quiet clearly that the land holder suffered damages from
seepage of water and yet he could not be compensated because the law of negligence
does not cover such a situation. The canal has been constructed for public good and yet
one person is made to suffer loss for his no fault. It is necessary that Administrative Law
should develop to cover such situations.
In this connection, reference may be made to the position in France where the law
of governmental liability for damages is very much developed. The basis of
governmental liability is not fault but risk. One of the fundamental principles of the
French public law to distribute equally among the citizenry the costs of government in the
absence of legislative disposition to the contrary. If a particular citizen is damaged by the
operation of administrative service even if there is no fault, the principle of equality in
sharing the expense of government is violated. It is not correct for a public activity, even
it be legal, to cause certain individuals damage that they alone must bear, that will force
them to carry more than their share of the costs of the state. All public activity benefits
the community as a whole, and so it must be paid for by the entire community.86
Sovereign Immunity of the state
The most daunting hurdle in the way of awarding compensation under article 32
would be the sovereign immunity of the state, which the Supreme Court has inferred
from article 300 of the constitution. The judicial treatment of the question in Rudal Shah
has not been quite satisfactory and the court appeared to have ignored the immunity
which attaches to the state in civil actions for its torts. Thus the court states that If the
petitioner files a suit to recover damages for his illegal detention, a decree for damages
would have to be
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86. Wade,Administrative Law, 687.
passed in the suit, though it is not possible to predicate in the absence of evidence, the
precise amount which would be decreed in his favour.87
Dimensions of Governmental Criminal Liability in India
Most of the Modern Indian Law is based on English Law. Naturally, even in the
case of government liability, the English approach is followed. In U.K., the principle of
office liability and state immunity was followed for a long time. In the field of criminal
law, vicarious liability is unknown. Hence, the Crown was not liable for the criminal acts
of its servants. Another argument advanced against the reverse principle of state liability
and officer immunity is that the officers will become indifferent and may violate law with
impunity. In England, liability of public corporations for criminal acts committed by their
servants was recognized. In India, in the judicial process, it is interpreted that whenever a
fine imposed does not go to the state treasury, the state can be made criminally liable.
Even the Crown Proceedings Act, 1947 has not made any difference in the position of
criminal liability of the state, on the ground, the prosecutor and the accused cannot be the
same person. Of course, the public officers may not enjoy immunity for any criminal
liability. They have no special privileges. In case of public authorities with reference to
the strict liability for the statutory offences, vicarious liability for the acts committed by
their agents was imposed.
In case of the tortuous actions, the position is that the liability of the government
is the same as it obtains at the commencement of the constitution with respect to the
exercise of the sovereign functions of the government. The government is not liable for
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injury done to an individual. Some of the sovereign functions identified by the judiciary
are:
87.
(i) Commandering goods during war.
(ii) Making or repairing a military road.
(iii) Administration of justice.
(iv) Improper Arrest.
(v) Negligence.
(vi) Trespass by police officers in the exercise of statutory power.
It was held in Vidyawatis case that the government was liable for injury caused
to an individual by the negligent driving of a government jeep. But in Kasturi Lal case, it
was held that the government enjoys immunity in case of rest or seizure made by a police
officer in the exercise of his statutory powers as a police officer. However, in the case of
all non-sovereign functions suits lie against the government for wrongs done by public
servants as in the cases where the government retains property or monies unlawfully
seized by its officers and injury done by vehicles engaged in famine relief work. But in
the case of acts of state, the government enjoys absolute immunity against absence but
not against its own subjects. The Supreme Court summarized the reasons for the
enjoyment of government immunity in criminal cases. In State of W.B. v. Corp. of
Calcutta the Supreme Court distinguished for violating section 218 of Calcutta
Municipal Act, 1951 and for carrying on trade of daily market at Calcutta without
obtaining a license as the fine was imposed and it did not result in anomaly as the fine did
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not go the coffers of the state. Of course, the officers of the state were punishable under
the Indian Law and there is a separate chapter for the offences by the officials in the
penal code. Of course, the sanction of government is necessary under the procedural law
for prosecuting an official or member of armed forces. When this special treatment was
challenged, the Supreme Court in Matajog Dubey v. H.C. Bhari upheld the validity of
section 197 of CrPC as not violative of article 14. However, the law is not settled in India
with respect to the criminal liability of the state and its officials.
Ultra Vires Administrative Action and liability to Compensate
The most important conceptual question on the point of relationship between
ultra vires administrative action and compensation is: can an ultra vires action per se
render the state liable to compensate? And depending upon the answer to this question,
the further question is: can/should compensation be awarded in all categories of cases of
ultravires action or should it be confined to certain category ofultra vires?
It is one of the basic principles of administrative law that administrative or
executive authorities must act within the limits of law; these limits may be constitutional
limits as well as the statutory limits. When any action crosses these limits, its action may
be struck down or quashed and/or it may be directed to act in accordance with law.88
Ultra vires action may be of different categories or different types. There may be
some ultra vires actions where the authorities act in blatant disregard of law, in Rudal
Shahs terminology, there are gross violations. Besides these, there are cases where
authorities exercise their power bonafide under their own interpretation of law, thinking
that they are acting in accordance with law, but their action is later held by the court as
ultra vires, because according to court they had violated some of the principles of
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88. Anupa Thapliyal, Judicial Control of Admn. discretion in India, P. P. 13-229.
administrative law, pertaining to manner of exercise of power. For example,
administrative action may be struck down on the ground that the power was exercised for
irrelevant considerations; for improper purpose; in violation of principles of natural
justice, or there was non-application of mind. These are some of the well known grounds
of statutory ultra vires.89 In India, where there is a written constitution many a times
statutory ultra vires and constitutional ultra vires overlap or run into one another. These
grounds of ultra vires many may be, thus covered under both constitutional limits
constituted by the fundamental rights as well as by the limits under statutes. For example,
inManeka Gandhi case, cancellation of passport without hearing was held to be violative
of article 21. Thus action was ultra vires the constitution. The same action also could
have been held to be ultra vires the statute of Indian Passport Act because the
administrative order did not give hearing, in violation of the requirement of the statute
that authority must act fairly. Thus many administrative action on these grounds can be
challenged as violative of articles 21, 14 and 19 under articles 32 and 226. The question
is: Can an ultra vires action on these grounds per se provide a cause of action for
compensation. Suppose an authority has to find relevant facts X and Y and may then
grant license. A finding by the court that the authority acted ultra vires in misconstruing
X or Y should not in itself be a ground for compensation. How does the court know
whether even if X and Y had been found by the authority it would have exercised its
discretion in favour of plaintiff and granted the plaintiff his license? To award the
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applicant compensation would necessitate the court exercising the discretion vested in the
authority.90 Similarly, in another situation an administrative
89. P. P. Craig, Compensation in Public Law, 96, LQR. (1980), P. 438.
90.Ibid, at P. 439.
authority, let us say government cancels a lease or permission by taking into account
considerations A, B, and C and the court finds the action to be ultra vires on the
ground that considerations B and C were compensation. This should not itself be a
ground for compensation. How does the court know whether even if consideration A
was taken into account alone or with other later relevant considerations it would have not
cancelled lease or permission. To award compensation in such cases would amount the
court exercising discretion vested in administrative authority.
Similarly, in a situation like Assam Sillimanite Case, where petitioners lease has
been cancelled by the government without giving an opportunity of being heard, i.e., in
violation of natural justice, giving of compensation means that authority would not have
cancelled the lease even after hearing the party? It is well known under administrative
law that when an authority is required to observe natural justice and does not observe the
same, it ordinarily results in quashing of administrative order, relegating the party to his
original position and leaving the authority to take a decision on the same matter afresh.
And while proceeding afresh, the administration is not debarred from arriving at the same
administrative decision even after hearing the party.91 Granting compensation in such
cases would amount to fettering or binding the administration to one particular decision92
which the court thinks right. This would amount to court exercising the discretion on
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merit rather than the concerned administrative authority. This is contrary to the well
settled administrative law principle that (i) the courts, while exercising the power of
judicial review do not go into merit of exercise of discretion, or in other words, sit over
91. Jain & Jain,Administrative Law, P. 307.
92. Ibid, at P. 600-603.
the judgment of administrative authorities. They only go into the question whether the
action was legal/constitutional or not.93 thus an ultra vires action per se should not result
into state liability to compensate.
Speaking on the present position of the law in U.K., H.W.R. points out that an
administrative action which is ultra vires will find an action in damages only in any of
the following situations:
a) If it involves the commission of a recognized tort such as trespass, false
imprisonment or negligence.
b) If it is actuated by malice or desire to injure for improper reasons.
c) If the authority knows that it does not possess the power to take action in
question.94
Thus in U.K., though the doctrine ofCrown immunity no longer exists after the
Crown Proceedings Act, 1947, damages are not automatically awarded for an ultra vires
action by review courts. An ultra vires action can provide a cause of action only in above
situations in a suit in ordinary courts. In USA also, liability to compensate can arise for
constitutional torts only for (i) malicious actions intended to cause harm (ii) for actions
the officer know or should have known would illegally cause injury.
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It is suggested that grant of compensation in writ petitions should be limited to the
cases strictly covered by Rudal Shah principle. In these cases, the cause of action or the
basis for award of compensation was really not ultra vires action per se but it was the fact
93. H. W. R. Wade,Administrative Law, P. 386.
94. Justice P. B. Sawant, Ensuring Accountability of Policemen-the scribe must be
peoples Ombudsma