VICARIOUS LIABILITY OF STATE IN INDIA AND ABROAD (By-Deepansha Vij)
VICARIOUS
LIABILITY OF STATE IN INDIA AND ABROAD
Authored by-Deepansha Vij
(Student at University School of Law and Legal Studies, GGSIPU)
ABSTRACT
The government or the state in general
enjoys several immunities. Immunities also include the acts done by the
government if otherwise would have done by a common individual he would have
certainly made liable. One such immunity is that of vicarious liability of the
state Whether or not the government can be made liable for the acts done by its
employees? The general trend around the world is mix. However, what is common
in all of them is that the countries over the passage of time have changed
their approach to not make the state liable at all to considering the acts of
state as tortuous acts. The Indian
system of judiciary is still not clear on the benchmarks or the guidelines to
be followed if the government or the state has to be made liable. There is no
clarity about the “sovereign functions” and “Non sovereign functions” which the
government performs and which has been the popular mode of determining the
state liability. If we look at other countries’ mode of determining the state
liability, some like France have a very strict approach in making the state
liable, in fact, the state can be made liable in cases pertaining to “no fault
liability”. Other country like the United States of America has some provisions
to make the government liable but is flooded with various exceptions and
procedural difficulties. England on other hand has evolved over time to make
the state liable and to put the state in the same shoes as that of a “common
man”.
KEYWORDS: State,
government, vicarious liability, employees, liable, tort
Introduction
“Ubi
jus ibi remedium” is a maxim that is widely used in Law of torts. The phrase
means where there is a wrong there is a remedy. Although this phrase is not
mentioned anywhere in the constitution of India but it is widely used while
deciding cases especially the cases which pertain to the law of torts. The
maxim is derived from the common law and forms the basis of law of torts or law
of wrongs. Whenever there is an infringement of obligation that is settled by
law the phrase comes into play. The question then arises is that who will be
liable for committing a wrong. Answering this question is convenient if we look
into the disputes of private parties. For example if A commits wrong to B then
A can be held liable. Similarly if the agent of A commits a wrong to B then
again A will be vicariously liable. The complexity arises when a right has been
infringed by the state. Can an employee of a state or in layman terms
‘government’ be held liable? Some of us might think that the state cannot be
held liable as it is performing its sovereign duty while other might be of the
opinion that a wrong is a wrong irrespective of who commits it. This forms the
‘Tortious Liability of State’ which means that the state can be held liable for
the wrongful acts or omission by its servants. Article 300 of the constitution
of India lays down that government of India can sue and can also be sued
against proceedings of dominion of India, province or any State. Article 300
thus makes it clear that the Union of India and the States are juristic
persons. There are no provisions which mention as to in what all circumstances
can the state be made liable. Therefore for ascertaining the same we are
heavily dependent on the judiciary. Therefore there is a need to lay down clear
terms as to when can the state be made liable.
Vicarious Liability Of State – Pre
Constitution Era
East India Company which
came to India for doing trade but later subjugated it was not a sovereign body
but was a delegate of the British crown. The functioning of the East India
Company was regulated by the legislations as framed by the crown in England.
Before the East India Company held the sovereign reigns of the country, the
first judicial interpretation of state liability was made in 1775- John
Stuart’s case. For the first time ever it was held that the governor general of
the state council comes under the jurisdiction of court in cases involving
dismissal of government servants. In other case of Moodlay v The East India Company[1]
the Privy Council was of the view that India can be exempted from the common
law principle of sovereign immunity. After the sepoy mutinity of 1857, the East
India Company came into the sovereign powers. The Government of India Act 1858,
was enacted which was subsequently replaced by Government of India Act 1915 and
1935. In the section 58 of the act, for the first time the liability of the
state was laid down. It stated that the secretary of state in council can sue
and be sued in India as well as in England by the name of ‘secretary of state’.
Any person or body corporate can take the proceedings against the secretary of
states as it would have bought against the company. It also stated that her
majesty for the purposes of government of India acquired shall be liable to the
same judgements and liabilities as the company. Section 68 of the act protected
the members of the council from personal liability. A widely discussed case
which was subsequently referred by the courts in India to decide the liability
of state was Peninsular and Oriental
Steam Navigation Company v. Secretary of state for India.[2]
In this case the plaintiff’s servant was travelling through a government
property. Due to the fault of defendant’s servants a heavy piece of iron which
they were carrying fell and its clang frightened the horse. The horse rushed
against the iron and was injured. The plaintiff filed a suit against secretary
of state for India in council for damage caused due to negligence of servants
employed by the government of India. The court in order to arrive at a
decision, draw distinction between the sovereign and non-sovereign function of
the state. It was held that if the East India Company had done the act in
exercise of the sovereign function, it would not have been liable. But since
the act done was of such a nature that other private party could have also done
the act (making it non-sovereign) the Company was held liable. According to
Peacock,C.J the company had dual
function- it had some sovereign functions and it also traded partly for the
benefit of the government and partly for its own benefit. Therefore, sovereign
and non sovereign acts could be distinguished. He was also of the view that if
the functions carried out are of such a nature that only a sovereign could
perform or any other person to whom the function has been delegated then the
state cannot be held liable.[3]
The
Madras High Court in Secretary of State
v. Hari Bhanjj[4] held
that immunity of East India Company extended only to "Acts of the
State". “Act of State” includes
acts done in exercise of sovereign functions. But where the act done is under municipal
law, the mere fact that it is done by sovereign powers and is not an act which
could possibly be done by a private individual does not oust the jurisdiction
of the civil court. The defence of an act of State is not available against a
citizen. Acts of State are directed against another sovereign State or its
sovereign personally or its subjects and being based on policy consideration
and not on law administered by municipal Courts they are not justifiable.
Therefore,
it can be concluded that in pre-constitution era although there was a provision
for making the state liable for tortuous acts of its servants but there were no
stringent norms as to in what circumstances the government could be liable. The
courts were also of the mixed view as to when the state could be made liable.
Present Scenerio
After
India became independent and drew its own constitution, the spirit of the
provision of Article 56 of Government of India was carried down to article 300
of the constitution of India. Article 294 and article 300 throw light on the
tortuous liability of state and the suits that can be filed there upon. Both
the articles come under Chapter III of Part XII of Constitution of India which
is headed as Property Contracts. Article 294 (b) of the Constitution of India
provides that the liability of Union Government or State Government may arise
out of any contract or otherwise. The word "otherwise" would include
various liabilities including tortious liability also. This Article thus
constitutes and transfers the liabilities of Government of India and Government
of each governing province in the Union of India and corresponding States.
Article 300 of the Constitution of India provides that State can sue or be sued
as juristic personality
The
notable case that came after the constitution was framed was that of State of Rajasthan v. Vidyawati.[5]
The court was of the view that our country was a welfare state and the
government should be not treated differently from other employers when it is
undertaking acts that can be done by a private individual. On further appeal,
the Supreme Court was of the same view and upheld the decision of high court.
The hon’ble Supreme Court was of the view that it would be “too much” to claim
immunity by the state when it is involving itself from functions other than
that of sovereign powers. It can be noted that the view point of ‘sovereign’
functions that was being referred in the case was taken from the Peninsular and
Oriental Steam Navigation Company case[6]
The precedent of Peninsular and Oriental Steam Navigation Company
case was again referred to by Gajendragadkar, C.J..He referred the case to
endorse the distinction between the sovereign and non sovereign functions while
deciding the tortuous liability of state in the case of Kasturi Lal v State of Uttar Pradesh[7].
Here the C.J referred to the case to distinguish between the sovereign and
non-sovereign function of the state. the counsel for the appellant had
contended that the principle laid down
in the case of Vidyawati[8]
should be extended to the present case. But, his lordship was of the view that
the factual matrix of that case was different from the present one. In the
former case, the act done was a non- sovereign function, as a result the state
was held liable. But in the latter, the act was clearly a sovereign function
and hence the state was eluded from being liable. His lordship was of the view
that there was no clear cut distinction between sovereign and non-sovereign
functions of the state. The case of Vidyawati, had not laid down any principles
for distinguishing between the same. Hence he urged the legislatures to enact
legislatures on the similar lines of Crown Proceedings Act,1947 in England.
The present decision of the court can be said to reveal a tendency
on part of the court to perpetuate the distinction between sovereign and
non-sovereign functions in order to determine the extent of state’s immunity
and liability. The Gajendragadkar CJ in this case wrongly assumed that the
principles laid down in the case of P&O company was widely being referred
to across courts in India. He seems to have ignored the principle laid down in
Hari bhanji case which stated that “act of state” cannot be an excuse to claim
immunity by the state if it is acting under the municipal law. It is to be
noted here that the views of CJ were of wide implications. It is only after his
suggestions in the case of Kasturi lal[9]
the Government of India introduced the Government ( Liability in Tort) Bill,
1965 in Lok Sabha. The bill seeked to implement subjected to some modifications
the recommendations of the law commission it is intended to give regard to the
suggestions made by Gajendragadkar C.J. it may be pointed out that the number
of cases in which the principle laid down in p&o case is more[10]
than the cases in which the principle laid down in Hari Bhanji’s[11]
case has been laid down[12].
The concept of sovereign and non- sovereign function is highly redundant in the
present complex societies of ours where the government is involved in every
walk of life. The modern welfare state is increasingly embarking on a journey
which is indistinguishable from those performed by private persons. Where the
government is doing such activities it should be equally treated at par with
that of other employers. The law of equality as guaranteed under article 14 of
the constitution of India shall be complied. It seems that the distinction of
functions of government in water tight compartments of “sovereign functions”
and “non-sovereign functions” is highly reminiscent of the Laissez Fair era. It
is out of tune with modern jurisprudential thinking and unworkable in reality.
It cannot be applied with logical consistency to the complex conditions of the
industrialized society of the mid twenties.[13].
Therefore, the question arises, what should be the criterion to decide the
government liability. The classification of sovereign and non sovereign
function would not function. There is a need for an alternate criterion to
establish the liability of the government one method could be by deciding the
form and nature of activity so conducted by the state.[14]
This rule perhaps may be applied in determining the liability of state in case
it is undertaking traditional functions such as defence, foreign affairs,
police ,etc. Another alternative to determine the liability can be to check if
the state has derived any benefit from the wrongful act of its servant. If the
answer is positive, the state can be sued for the extent of which such benefit
is derived.[15] Going further other criterion could be
drawing distinction between claims arising out of personal injury and injury to
property – movable or immovable. With respect to the former the government
should be invariably liable. In respect of the other, the spurious claims between
the people and the government officials cannot be ruled out.
The responsibility of protecting people lies on the shoulder of
the judiciary. The judiciary through its creative thinking and judicial
activism can make out certain guidelines which can reasonably absolve the
protection to the acts of state to make it accountable for its acts which
hinder the rights of the people. No blanket immunity can be granted to the
state for its actions in name of ‘sovereign function’ as it will defeat the
very purpose for which our constitution was made. There is a requirement to carefully balance
the public interest with private claims, blanket provisions will definitely not
solve the problem. Hence to solve the
problem of ‘Tortious Liability of State’ and in what cases and to what extent
the state can be made liable can be solved by looking into the provisions of
countries around the world and inferring the same from their laws and legal
precedents.
ENGLAND
The
position of liability of king was different from that if India. As discussed
above, in India everyone was equal before the law, the sovereign could be made
liable for his wrong or the wrong of his servants but in England it was the
contrary. In England the two priniciples which were widely followed were Rex non
potest peccare “King can do no wrong” and other related to procedural law which
was “King cannot be sued in his own court”. The legal position given to the
king was given by the law and the law does not give him the authority to
transgress the powers and prerogatives which distinguish him from an ordinary
subject. “king can do no wrong “ did not meant that the king is above the law
but meant that the king has no legal power to do wrong. Other reason for not
being able to hold the sovereign accountable for his wrong was because of lack
of procedural remedy.[16]
Under feudalism it was unthinkable to file a suit against the monarch. The
kings were the ones who held courts which means that they were at the top of
the feudal pyramid hence escaping the action of being sued. The king was not
liable to be sued in criminal or civil matters for the wrong doings. This was
invoked to negate the right of the subject to sue the king to seek redressal
for the wrong committed by him.[17]
This
changed in 1234, when the king’s court proclaimed “Our lord the king cannot be
summoned or receive a command from anyone”[18].
The king was now liable to its subjects and had to redress the claims against
him in courts. Proper procedures were established to seek redressal . With the
commencement of statute of Westminster 1275 the king and his officers could be
sued. The wrong committed under a royal commission was made liable in 1331.
Abolition of Star Chamber in 1641 and the enactment of Habeas Corpus Act 1679
was a blow to feudalistic powers of the Crown. The courts now began to enforce
contracts against the king. However the king could not be sued for wrongs
committed in torts.[19]
In the nineteenth century the concept of vicarious liability became popular.
The employers were held liable for the acts of their servants. Following the
‘Rule of Law’ it was thought that the it was time when the government ministers
could be held liable. The officials were defended by the Treasury Solicitor
because the compensation for the wrongs committed by the officials was to be
paid from the government treasury. There was difficulty when the wrongdoer
could not be identified amongst the department. So, the government starting
nominating the defendants for the suit which was condemned by the house of
lords as it was against the common law principles. This came in light in the
case of Adams v Naylor[20]
where a boy died when he came into contact with the wire fence of the mine
field owned by the ministry. Here the house of lords was of the view that there
was no substance in holding the ‘nominated ‘ defendant liable as it was in no
way his fault. The suit merely failed just because the crown could not be made
liable. The court was of the view that it was time when the legislations on the
wrong committed by servants of the crown could hold the crown liable.[21]
This lead to the Crown Proceeding
Act,1947.
This
act made the crown liable for the actions of its employees in the same way as a
private employer would be if his servants committed torts. The crown could be
made liable by following ordinary procedures through ordinary courts. If the
authority acted without power, there was no justification for it and it
constitute torts or contract or any other wrongful acts and is actionable like
a private person. The purpose of this act was to put the crown in the shoes of
an ordinary defendant. The crown would be liable as if the minister or servants
were acting on the instructions from the crown.[22]
Although the defence of ‘Act of State’ was available to the government but it
could be applied only in limited circumstances. Limited circumstances included
course of relation with other states or subjects of other states or claims
arising out of treaties.[23]
If
the situation of state liability for tortuous acts of its servants of India is
compared to that of England, Indian government enjoys various defences apart
from ‘Act of State’ such as sovereign and non sovereign function which have no
clear guidelines or norms classifying as to which activities constitutes
sovereign functions and which activities come under non-sovereign functions of
state.
United
States Of America
In
the legal system of America there was no concept of liability for the acts of
state. This can be attributed to the financial
instability of the state after the American revolutionary war .The
government could not be held vicariously liable as there can be no legal right
against the authority that makes law on which the right depends. The process of
making the government liable started with the case of Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics. In this case the court held
that violation of the fourth amendment can be the basis for making the officers
liable for damages. But it is to be noted that the federal government was still
not made liable in this case.
Various
statements were made by the Supreme court which indicated that the government
could not be held liable. For instance, Marshall C.J was of the view that no
suit can be commenced or prosecuted against the United States and the judiciary
does not authorise such suits. In 1868 the Supreme Court went to the extent of
saying that no government has made itself liable for the misfeasance, latches
or unauthorised acts of its agents. Justice Holmes brought the concept of
Sovereign Immunity which exempted suit against the government.
However
this gradually began to change. In 1910, the claim for infringement of rights
was recognised. This was followed by enactment of The Federal Tort Claims
Act,194 by the congress. According to this act, the government like any other
private individual could be made liable for the tort committed by its employees
acting within their authority. Hence the people can now claim financial
compensation for the damage caused. This act however bars the people to claim
damages in certain cases. The state cannot be made liable for every wrongful
act of its agent or employee.[24] For example, the FTCA
categorically bars plaintiffs from pursuing certain types of tort lawsuits
against the United States. The FTCA also restricts the types and amount of
monetary damages that a plaintiff may recover against the United
States. Additionally, the FTCA requires plaintiffs to comply with an array
of procedural requirements before filing suit.
It
is also to be noted that the said act only grants a relief to the plaintiff if
the suit is filed against the ‘employee of the government’[25].
The act also has the provision which protects the federal employees for the tortuous
acts committed by them but not for the violation of any other constitutional
rights.[26]
The common practice in the USA is to hire independent contractors to perform
some functions as intended by the government.[27]
The question then arises is whether these independent contractors come under
the definition of ‘employees of government’? The answer to this question is in
negative.[28]
This
means that the plaintiff will have to recover damages from such a contractor in
personal capacity and the government cannot be made liable for the same.
However a plaintiff in doing so can still encounter several problems in filing
a suit. The
Supreme Court ruled in its 1988 decision in Boyle v. United Technologies Corp., a plaintiff may not pursue
state law tort claims against a government contractor if imposing such
liability would either create "a 'significant conflict'" with
"an identifiable 'federal policy or interest'" or "'frustrate
specific objectives' of federal legislation." [29]
As a result, the courts in various cases have opined that suit against tortuous
liability cannot be instituted against independent contractors in cases related
to defence and military[30].
Apart from this, the boyle rule is usually not exercised by the courts in
non-military claims. [31]
FRANCE
As
compared to the above discussed countries , the state liability for torts is
quite clear in the French laws. The French doctrine of state liability is based
on the theory that the state is an honest man and will not try to escape his
responsibility to its citizens for the wrongful act by raising the defence of
state immunity.[32] French
courts have evolved what once was state immunity for tortuous acts to absolute
liability of state and partial liability of the employees. The maxim “A king
can do no wrong” is replaced by “The state is an honest man”. The liability of
an officer of the state can be divided into two categories. First one is faute
de personnel which means the officer can be sued personally in a civil court.
Second is the faute de service in which the state was alone liable for the
faults in administrative courts. Personal fault included gross negligence or
wilful neglect with malice.. However this system had its own troubles. On one
hand when the suit was brought against the personal liability, the defendant in
the case was not able to compensate the party due to limited resources. This
lead the citizens to bring cases against
the state in the administrative courts. There were some cases where the
citizens used to bring frivolous charges just to exploit the state for
compensation. This lead to the decision of shared compensation between the
party and the government by Counsel
d’Etat.
In
the case of Delvilla[33],
the defendant was in a drunken state while driving a vehicle and also the
breaks of the vehicle were at fault. Therefore the defendant made a claim for
fifty per cent of the contribution of damages by the state as the fault was
with the vehicle too. The Counsel d’Etat upheld his claim and thus the state
had to share damages with the defendant.
The
French courts also believe in the concept of no fault liability of the state.
Even if there is no
negligence
on the part of state it can still be made liable to pay compensation for the
damage caused to the citizens by its administrative actions. Hence the state
can only be immune from liability if the officials are acting outside their
scope of power.
Conclusion
It
can be observed that the liability of state is different in different
countries. This means that in some countries such as that of French legal
system has a clear demarcation as to when the state can be held liable and
there is a provision that the state is an innocent person and can be made
liable if done wrong. The system in England although did not have a legal
provision as to make the state liable according to the saying that the “King
can do no wrong” but after the Crown Proceedings Act of 1947 the state has the
same liability as that of private individual. In United States the state can be
made liable against the tortuous acts of the employees of the government but
issues are faced if the act is done by independent contractor. Majority of
Indian Courts still follow the concept of “sovereign” and ‘non-sovereign’
functions of state to decide the liability of the state for the acts done by
its employees. It can be concluded that the liability of state for the tortuous
acts of its servants/employees is gradually being realised. In the cases
discussed above , there was no liability of state earlier but with the passage
of time the government could be made liable on one stance or other though
absolute accountability on part of government is still to be achieved. There is
a need for clearing ambiguity around the laws determining the liability of
state if the wrongful acts are done by its employees. The government cannot
escape it liability by simply raising the defence of exercise of “sovereign
function”. More articulate and fair measures and guidelines need to be
developed to lay down the circumstances or conditions under which government
can be held vicariously liable.
VICARIOUS
LIABILITY OF STATE IN INDIA AND ABROAD
Authored by-Deepansha Vij
(Student at University School of Law and Legal Studies, GGSIPU)
ABSTRACT
The government or the state in general
enjoys several immunities. Immunities also include the acts done by the
government if otherwise would have done by a common individual he would have
certainly made liable. One such immunity is that of vicarious liability of the
state Whether or not the government can be made liable for the acts done by its
employees? The general trend around the world is mix. However, what is common
in all of them is that the countries over the passage of time have changed
their approach to not make the state liable at all to considering the acts of
state as tortuous acts. The Indian
system of judiciary is still not clear on the benchmarks or the guidelines to
be followed if the government or the state has to be made liable. There is no
clarity about the “sovereign functions” and “Non sovereign functions” which the
government performs and which has been the popular mode of determining the
state liability. If we look at other countries’ mode of determining the state
liability, some like France have a very strict approach in making the state
liable, in fact, the state can be made liable in cases pertaining to “no fault
liability”. Other country like the United States of America has some provisions
to make the government liable but is flooded with various exceptions and
procedural difficulties. England on other hand has evolved over time to make
the state liable and to put the state in the same shoes as that of a “common
man”.
KEYWORDS: State,
government, vicarious liability, employees, liable, tort
Introduction
“Ubi
jus ibi remedium” is a maxim that is widely used in Law of torts. The phrase
means where there is a wrong there is a remedy. Although this phrase is not
mentioned anywhere in the constitution of India but it is widely used while
deciding cases especially the cases which pertain to the law of torts. The
maxim is derived from the common law and forms the basis of law of torts or law
of wrongs. Whenever there is an infringement of obligation that is settled by
law the phrase comes into play. The question then arises is that who will be
liable for committing a wrong. Answering this question is convenient if we look
into the disputes of private parties. For example if A commits wrong to B then
A can be held liable. Similarly if the agent of A commits a wrong to B then
again A will be vicariously liable. The complexity arises when a right has been
infringed by the state. Can an employee of a state or in layman terms
‘government’ be held liable? Some of us might think that the state cannot be
held liable as it is performing its sovereign duty while other might be of the
opinion that a wrong is a wrong irrespective of who commits it. This forms the
‘Tortious Liability of State’ which means that the state can be held liable for
the wrongful acts or omission by its servants. Article 300 of the constitution
of India lays down that government of India can sue and can also be sued
against proceedings of dominion of India, province or any State. Article 300
thus makes it clear that the Union of India and the States are juristic
persons. There are no provisions which mention as to in what all circumstances
can the state be made liable. Therefore for ascertaining the same we are
heavily dependent on the judiciary. Therefore there is a need to lay down clear
terms as to when can the state be made liable.
Vicarious Liability Of State – Pre
Constitution Era
East India Company which
came to India for doing trade but later subjugated it was not a sovereign body
but was a delegate of the British crown. The functioning of the East India
Company was regulated by the legislations as framed by the crown in England.
Before the East India Company held the sovereign reigns of the country, the
first judicial interpretation of state liability was made in 1775- John
Stuart’s case. For the first time ever it was held that the governor general of
the state council comes under the jurisdiction of court in cases involving
dismissal of government servants. In other case of Moodlay v The East India Company[1]
the Privy Council was of the view that India can be exempted from the common
law principle of sovereign immunity. After the sepoy mutinity of 1857, the East
India Company came into the sovereign powers. The Government of India Act 1858,
was enacted which was subsequently replaced by Government of India Act 1915 and
1935. In the section 58 of the act, for the first time the liability of the
state was laid down. It stated that the secretary of state in council can sue
and be sued in India as well as in England by the name of ‘secretary of state’.
Any person or body corporate can take the proceedings against the secretary of
states as it would have bought against the company. It also stated that her
majesty for the purposes of government of India acquired shall be liable to the
same judgements and liabilities as the company. Section 68 of the act protected
the members of the council from personal liability. A widely discussed case
which was subsequently referred by the courts in India to decide the liability
of state was Peninsular and Oriental
Steam Navigation Company v. Secretary of state for India.[2]
In this case the plaintiff’s servant was travelling through a government
property. Due to the fault of defendant’s servants a heavy piece of iron which
they were carrying fell and its clang frightened the horse. The horse rushed
against the iron and was injured. The plaintiff filed a suit against secretary
of state for India in council for damage caused due to negligence of servants
employed by the government of India. The court in order to arrive at a
decision, draw distinction between the sovereign and non-sovereign function of
the state. It was held that if the East India Company had done the act in
exercise of the sovereign function, it would not have been liable. But since
the act done was of such a nature that other private party could have also done
the act (making it non-sovereign) the Company was held liable. According to
Peacock,C.J the company had dual
function- it had some sovereign functions and it also traded partly for the
benefit of the government and partly for its own benefit. Therefore, sovereign
and non sovereign acts could be distinguished. He was also of the view that if
the functions carried out are of such a nature that only a sovereign could
perform or any other person to whom the function has been delegated then the
state cannot be held liable.[3]
The
Madras High Court in Secretary of State
v. Hari Bhanjj[4] held
that immunity of East India Company extended only to "Acts of the
State". “Act of State” includes
acts done in exercise of sovereign functions. But where the act done is under municipal
law, the mere fact that it is done by sovereign powers and is not an act which
could possibly be done by a private individual does not oust the jurisdiction
of the civil court. The defence of an act of State is not available against a
citizen. Acts of State are directed against another sovereign State or its
sovereign personally or its subjects and being based on policy consideration
and not on law administered by municipal Courts they are not justifiable.
Therefore,
it can be concluded that in pre-constitution era although there was a provision
for making the state liable for tortuous acts of its servants but there were no
stringent norms as to in what circumstances the government could be liable. The
courts were also of the mixed view as to when the state could be made liable.
Present Scenerio
After
India became independent and drew its own constitution, the spirit of the
provision of Article 56 of Government of India was carried down to article 300
of the constitution of India. Article 294 and article 300 throw light on the
tortuous liability of state and the suits that can be filed there upon. Both
the articles come under Chapter III of Part XII of Constitution of India which
is headed as Property Contracts. Article 294 (b) of the Constitution of India
provides that the liability of Union Government or State Government may arise
out of any contract or otherwise. The word "otherwise" would include
various liabilities including tortious liability also. This Article thus
constitutes and transfers the liabilities of Government of India and Government
of each governing province in the Union of India and corresponding States.
Article 300 of the Constitution of India provides that State can sue or be sued
as juristic personality
The
notable case that came after the constitution was framed was that of State of Rajasthan v. Vidyawati.[5]
The court was of the view that our country was a welfare state and the
government should be not treated differently from other employers when it is
undertaking acts that can be done by a private individual. On further appeal,
the Supreme Court was of the same view and upheld the decision of high court.
The hon’ble Supreme Court was of the view that it would be “too much” to claim
immunity by the state when it is involving itself from functions other than
that of sovereign powers. It can be noted that the view point of ‘sovereign’
functions that was being referred in the case was taken from the Peninsular and
Oriental Steam Navigation Company case[6]
The precedent of Peninsular and Oriental Steam Navigation Company
case was again referred to by Gajendragadkar, C.J..He referred the case to
endorse the distinction between the sovereign and non sovereign functions while
deciding the tortuous liability of state in the case of Kasturi Lal v State of Uttar Pradesh[7].
Here the C.J referred to the case to distinguish between the sovereign and
non-sovereign function of the state. the counsel for the appellant had
contended that the principle laid down
in the case of Vidyawati[8]
should be extended to the present case. But, his lordship was of the view that
the factual matrix of that case was different from the present one. In the
former case, the act done was a non- sovereign function, as a result the state
was held liable. But in the latter, the act was clearly a sovereign function
and hence the state was eluded from being liable. His lordship was of the view
that there was no clear cut distinction between sovereign and non-sovereign
functions of the state. The case of Vidyawati, had not laid down any principles
for distinguishing between the same. Hence he urged the legislatures to enact
legislatures on the similar lines of Crown Proceedings Act,1947 in England.
The present decision of the court can be said to reveal a tendency
on part of the court to perpetuate the distinction between sovereign and
non-sovereign functions in order to determine the extent of state’s immunity
and liability. The Gajendragadkar CJ in this case wrongly assumed that the
principles laid down in the case of P&O company was widely being referred
to across courts in India. He seems to have ignored the principle laid down in
Hari bhanji case which stated that “act of state” cannot be an excuse to claim
immunity by the state if it is acting under the municipal law. It is to be
noted here that the views of CJ were of wide implications. It is only after his
suggestions in the case of Kasturi lal[9]
the Government of India introduced the Government ( Liability in Tort) Bill,
1965 in Lok Sabha. The bill seeked to implement subjected to some modifications
the recommendations of the law commission it is intended to give regard to the
suggestions made by Gajendragadkar C.J. it may be pointed out that the number
of cases in which the principle laid down in p&o case is more[10]
than the cases in which the principle laid down in Hari Bhanji’s[11]
case has been laid down[12].
The concept of sovereign and non- sovereign function is highly redundant in the
present complex societies of ours where the government is involved in every
walk of life. The modern welfare state is increasingly embarking on a journey
which is indistinguishable from those performed by private persons. Where the
government is doing such activities it should be equally treated at par with
that of other employers. The law of equality as guaranteed under article 14 of
the constitution of India shall be complied. It seems that the distinction of
functions of government in water tight compartments of “sovereign functions”
and “non-sovereign functions” is highly reminiscent of the Laissez Fair era. It
is out of tune with modern jurisprudential thinking and unworkable in reality.
It cannot be applied with logical consistency to the complex conditions of the
industrialized society of the mid twenties.[13].
Therefore, the question arises, what should be the criterion to decide the
government liability. The classification of sovereign and non sovereign
function would not function. There is a need for an alternate criterion to
establish the liability of the government one method could be by deciding the
form and nature of activity so conducted by the state.[14]
This rule perhaps may be applied in determining the liability of state in case
it is undertaking traditional functions such as defence, foreign affairs,
police ,etc. Another alternative to determine the liability can be to check if
the state has derived any benefit from the wrongful act of its servant. If the
answer is positive, the state can be sued for the extent of which such benefit
is derived.[15] Going further other criterion could be
drawing distinction between claims arising out of personal injury and injury to
property – movable or immovable. With respect to the former the government
should be invariably liable. In respect of the other, the spurious claims between
the people and the government officials cannot be ruled out.
The responsibility of protecting people lies on the shoulder of
the judiciary. The judiciary through its creative thinking and judicial
activism can make out certain guidelines which can reasonably absolve the
protection to the acts of state to make it accountable for its acts which
hinder the rights of the people. No blanket immunity can be granted to the
state for its actions in name of ‘sovereign function’ as it will defeat the
very purpose for which our constitution was made. There is a requirement to carefully balance
the public interest with private claims, blanket provisions will definitely not
solve the problem. Hence to solve the
problem of ‘Tortious Liability of State’ and in what cases and to what extent
the state can be made liable can be solved by looking into the provisions of
countries around the world and inferring the same from their laws and legal
precedents.
ENGLAND
The
position of liability of king was different from that if India. As discussed
above, in India everyone was equal before the law, the sovereign could be made
liable for his wrong or the wrong of his servants but in England it was the
contrary. In England the two priniciples which were widely followed were Rex non
potest peccare “King can do no wrong” and other related to procedural law which
was “King cannot be sued in his own court”. The legal position given to the
king was given by the law and the law does not give him the authority to
transgress the powers and prerogatives which distinguish him from an ordinary
subject. “king can do no wrong “ did not meant that the king is above the law
but meant that the king has no legal power to do wrong. Other reason for not
being able to hold the sovereign accountable for his wrong was because of lack
of procedural remedy.[16]
Under feudalism it was unthinkable to file a suit against the monarch. The
kings were the ones who held courts which means that they were at the top of
the feudal pyramid hence escaping the action of being sued. The king was not
liable to be sued in criminal or civil matters for the wrong doings. This was
invoked to negate the right of the subject to sue the king to seek redressal
for the wrong committed by him.[17]
This
changed in 1234, when the king’s court proclaimed “Our lord the king cannot be
summoned or receive a command from anyone”[18].
The king was now liable to its subjects and had to redress the claims against
him in courts. Proper procedures were established to seek redressal . With the
commencement of statute of Westminster 1275 the king and his officers could be
sued. The wrong committed under a royal commission was made liable in 1331.
Abolition of Star Chamber in 1641 and the enactment of Habeas Corpus Act 1679
was a blow to feudalistic powers of the Crown. The courts now began to enforce
contracts against the king. However the king could not be sued for wrongs
committed in torts.[19]
In the nineteenth century the concept of vicarious liability became popular.
The employers were held liable for the acts of their servants. Following the
‘Rule of Law’ it was thought that the it was time when the government ministers
could be held liable. The officials were defended by the Treasury Solicitor
because the compensation for the wrongs committed by the officials was to be
paid from the government treasury. There was difficulty when the wrongdoer
could not be identified amongst the department. So, the government starting
nominating the defendants for the suit which was condemned by the house of
lords as it was against the common law principles. This came in light in the
case of Adams v Naylor[20]
where a boy died when he came into contact with the wire fence of the mine
field owned by the ministry. Here the house of lords was of the view that there
was no substance in holding the ‘nominated ‘ defendant liable as it was in no
way his fault. The suit merely failed just because the crown could not be made
liable. The court was of the view that it was time when the legislations on the
wrong committed by servants of the crown could hold the crown liable.[21]
This lead to the Crown Proceeding
Act,1947.
This
act made the crown liable for the actions of its employees in the same way as a
private employer would be if his servants committed torts. The crown could be
made liable by following ordinary procedures through ordinary courts. If the
authority acted without power, there was no justification for it and it
constitute torts or contract or any other wrongful acts and is actionable like
a private person. The purpose of this act was to put the crown in the shoes of
an ordinary defendant. The crown would be liable as if the minister or servants
were acting on the instructions from the crown.[22]
Although the defence of ‘Act of State’ was available to the government but it
could be applied only in limited circumstances. Limited circumstances included
course of relation with other states or subjects of other states or claims
arising out of treaties.[23]
If
the situation of state liability for tortuous acts of its servants of India is
compared to that of England, Indian government enjoys various defences apart
from ‘Act of State’ such as sovereign and non sovereign function which have no
clear guidelines or norms classifying as to which activities constitutes
sovereign functions and which activities come under non-sovereign functions of
state.
United
States Of America
In
the legal system of America there was no concept of liability for the acts of
state. This can be attributed to the financial
instability of the state after the American revolutionary war .The
government could not be held vicariously liable as there can be no legal right
against the authority that makes law on which the right depends. The process of
making the government liable started with the case of Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics. In this case the court held
that violation of the fourth amendment can be the basis for making the officers
liable for damages. But it is to be noted that the federal government was still
not made liable in this case.
Various
statements were made by the Supreme court which indicated that the government
could not be held liable. For instance, Marshall C.J was of the view that no
suit can be commenced or prosecuted against the United States and the judiciary
does not authorise such suits. In 1868 the Supreme Court went to the extent of
saying that no government has made itself liable for the misfeasance, latches
or unauthorised acts of its agents. Justice Holmes brought the concept of
Sovereign Immunity which exempted suit against the government.
However
this gradually began to change. In 1910, the claim for infringement of rights
was recognised. This was followed by enactment of The Federal Tort Claims
Act,194 by the congress. According to this act, the government like any other
private individual could be made liable for the tort committed by its employees
acting within their authority. Hence the people can now claim financial
compensation for the damage caused. This act however bars the people to claim
damages in certain cases. The state cannot be made liable for every wrongful
act of its agent or employee.[24] For example, the FTCA
categorically bars plaintiffs from pursuing certain types of tort lawsuits
against the United States. The FTCA also restricts the types and amount of
monetary damages that a plaintiff may recover against the United
States. Additionally, the FTCA requires plaintiffs to comply with an array
of procedural requirements before filing suit.
It
is also to be noted that the said act only grants a relief to the plaintiff if
the suit is filed against the ‘employee of the government’[25].
The act also has the provision which protects the federal employees for the tortuous
acts committed by them but not for the violation of any other constitutional
rights.[26]
The common practice in the USA is to hire independent contractors to perform
some functions as intended by the government.[27]
The question then arises is whether these independent contractors come under
the definition of ‘employees of government’? The answer to this question is in
negative.[28]
This
means that the plaintiff will have to recover damages from such a contractor in
personal capacity and the government cannot be made liable for the same.
However a plaintiff in doing so can still encounter several problems in filing
a suit. The
Supreme Court ruled in its 1988 decision in Boyle v. United Technologies Corp., a plaintiff may not pursue
state law tort claims against a government contractor if imposing such
liability would either create "a 'significant conflict'" with
"an identifiable 'federal policy or interest'" or "'frustrate
specific objectives' of federal legislation." [29]
As a result, the courts in various cases have opined that suit against tortuous
liability cannot be instituted against independent contractors in cases related
to defence and military[30].
Apart from this, the boyle rule is usually not exercised by the courts in
non-military claims. [31]
FRANCE
As
compared to the above discussed countries , the state liability for torts is
quite clear in the French laws. The French doctrine of state liability is based
on the theory that the state is an honest man and will not try to escape his
responsibility to its citizens for the wrongful act by raising the defence of
state immunity.[32] French
courts have evolved what once was state immunity for tortuous acts to absolute
liability of state and partial liability of the employees. The maxim “A king
can do no wrong” is replaced by “The state is an honest man”. The liability of
an officer of the state can be divided into two categories. First one is faute
de personnel which means the officer can be sued personally in a civil court.
Second is the faute de service in which the state was alone liable for the
faults in administrative courts. Personal fault included gross negligence or
wilful neglect with malice.. However this system had its own troubles. On one
hand when the suit was brought against the personal liability, the defendant in
the case was not able to compensate the party due to limited resources. This
lead the citizens to bring cases against
the state in the administrative courts. There were some cases where the
citizens used to bring frivolous charges just to exploit the state for
compensation. This lead to the decision of shared compensation between the
party and the government by Counsel
d’Etat.
In
the case of Delvilla[33],
the defendant was in a drunken state while driving a vehicle and also the
breaks of the vehicle were at fault. Therefore the defendant made a claim for
fifty per cent of the contribution of damages by the state as the fault was
with the vehicle too. The Counsel d’Etat upheld his claim and thus the state
had to share damages with the defendant.
The
French courts also believe in the concept of no fault liability of the state.
Even if there is no
negligence
on the part of state it can still be made liable to pay compensation for the
damage caused to the citizens by its administrative actions. Hence the state
can only be immune from liability if the officials are acting outside their
scope of power.
Conclusion
It
can be observed that the liability of state is different in different
countries. This means that in some countries such as that of French legal
system has a clear demarcation as to when the state can be held liable and
there is a provision that the state is an innocent person and can be made
liable if done wrong. The system in England although did not have a legal
provision as to make the state liable according to the saying that the “King
can do no wrong” but after the Crown Proceedings Act of 1947 the state has the
same liability as that of private individual. In United States the state can be
made liable against the tortuous acts of the employees of the government but
issues are faced if the act is done by independent contractor. Majority of
Indian Courts still follow the concept of “sovereign” and ‘non-sovereign’
functions of state to decide the liability of the state for the acts done by
its employees. It can be concluded that the liability of state for the tortuous
acts of its servants/employees is gradually being realised. In the cases
discussed above , there was no liability of state earlier but with the passage
of time the government could be made liable on one stance or other though
absolute accountability on part of government is still to be achieved. There is
a need for clearing ambiguity around the laws determining the liability of
state if the wrongful acts are done by its employees. The government cannot
escape it liability by simply raising the defence of exercise of “sovereign
function”. More articulate and fair measures and guidelines need to be
developed to lay down the circumstances or conditions under which government
can be held vicariously liable.