Constitutional Tor1

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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

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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

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