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LIABILITY OF THE STATE IN TORT

Obligation of state
No civilized system can permit an executive to play with the people of its count
ry and claim that it is entitled to act in any manner, as it is sovereign. The c
oncept of public interest has changed with structural change in the society. No
legal or political system today can place the State above the law as it is unjus
t and unfair for a citizen to be deprived of his rights or liberties illegally b
y negligent act of officers of the State without any remedy. The State is a juri
stic person, propounded in nineteenth century as sound sociological basis for St
ate immunity, the circle has gone round and the emphasis now is more on liberty,
equality and the rule of law.
The modern social thinking of progressive societies and the judicial approach is
to do away with archaic State protection and place the State or the Government
on a par with any other juristic legal entity. Any watertight compartmentalizati
on of the functions of the State as sovereign and non-sovereign or governmental and
non-governmental is not sound. It is contrary to modern jurisprudential thinking
. The need of the State to have extraordinary powers cannot be doubted. But with
the conceptual change of statutory power being statutory duty for the sake of s
ociety and the people, the claim of a common man or ordinary citizen cannot be t
hrown out, merely because it was done by an officer of the State; duty of its of
ficials and right of the citizens are required to be reconciled, so that the rul
e of law in a Welfare State is not shaken. Thus in N. Nagendra Rao v State of AP
[1] the Apex Court held In the modern sense, the distinction between sovereign or
non-sovereign power thus does not exist.
The state was established to meet the needs of the individual and society, and h
ence it has to discharge properly obligations expected of it. The proper functio
ning of the state depends upon a well-organized system of duties and rights. It
should also promote the health of the individuals, spread education and discharg
e other functions, political social and economic for developing the personality
of the individual.
Role of the State tort law-Indian scenario
In any modern society, interactions between the State and the citizens are large
in their number, frequent in their periodicity and important from the point of
view of their effect on the lives and fortunes of citizens. Such interactions of
ten raise legal problems, whose solution requires an application of various prov
isions and doctrines. A large number of the problems so arising fall within the
area of the law of torts. This is because, where relief through a civil court is
desired, the tort law figures much more frequently, than any other branch of la
w. By definition, a tort is a civil wrong, (not being a breach of contract or a
breach of trust or other wrong) for which the remedy is unliquidated damages. It
thus encompasses all wrongs for which a legal remedy is considered appropriate.
The law in India with respect to the liability of the State for the tortious act
s of its servants has become entangled with the nature and character of the role
of the East India Company prior to 1858. It is therefore necessary to trace the
course of development of the law on this subject, as contained in article 300 o
f the Constitution. Sec. 65 of the Government of India Act, 1858, which is the p
arent source of the law relating to the liability of the Govt. provided that; All
persons and bodies politic shall and may have and take the same suits, remedies
and proceedings, legal and equitable against the secretary of state for India a
s they could have done against the said company . This provision was continued by
the succeeding Govt. of India Act, 1915, Sec. 32, Govt. of India Act, 1935 Sec.
176 (1) and is also continued by Art. 300 (1) of the Constitution of India.
Given this importance of tort law, and given the vast role that the State perfor
ms in modern times, one would reasonably expect that the legal principles relati
ng to an important area of tort law, namely, liability of the State in tort, wou
ld be easily ascertainable. However, at present, this ideal is not at all achiev
ed, in reality, in India. It is for this reason that we have considered it neces
sary to consider the subject and to suggest certain reforms.
The cases of Rudul Shah[2], lead to inference that the defense of sovereign immu
nity is not available when the state or its officers acting in the course of emp
loyment infringe a person s fundamental right of life and personal liberty as guar
anteed by the Art. 21 of the Constitution of India.
The supreme Court cases discussed above did not refer to the doctrine of soverei
gn immunity or the case of Kasturilal[3] on which the following submission was m
ade: It is submitted that, that case (kasturilal) even if not overruled can be di
stinguished on the ground that it did not consider the nature of liability of th
e state when there is deprivation of fundamental right.
The law in India with respect to the liability of the State for the tortious act
s of its servants has become entangled with the nature and character of the role
of the East India Company prior to 1858. It is therefore necessary to trace the
course of development of the law on this subject, as contained in article 300 o
f the Constitution[4].
Liability for Breach of Human Rights
The Human Rights Act, makes comprehensive provision for remedies, in particular
against public authorities. In the first place, it provides that a person who c
laims that a public authority has acted or proposes to act in a way which is inc
ompatible with a Convention / international rights may bring proceedings against
the authority in the appropriate court or tribunal, but only if he is, or would
be , a victim of the unlawful act. Secondly, in relation to any unlawful act o
r proposed act of a public authority the court may grant such relief or remedy, o
r make such order, within its powers as it considers just and appropriate.
The Act provides, however, that damages for a judicial act (since court s and tr
ibunal count as public authorities), if done in good faith, may not be awarded e
xcept as specifically provided in the case of unlawful arrest or detention nor m
ay a judicial act be challenged otherwise than by way of appeal or judicial revi
ew or under ministerial rules. But many violations also were committed by minist
erial acts or orders, police and prison authorities, immigration officials and o
thers. The liability of the state to pay compensation for the deprivation of the
fundamental right of life and personal liberty (or any other fundamental right
for that matter) is a new liability in public law created by the constitution an
d not vicarious liability or a liability in tort. For this reason, this new liab
ility is not hedged in by the limitations, including the doctrine of sovereign i
mmunity, which ordinarily apply to state s liability in tort. This view is strongl
y supported by the decision of the Privy Council in Maharaj v Attorney-General o
f Trinidad and Tobago[5].

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Tort Law In India
In India the term tort has been in existence since pre-independence era. The San
skrit word Jimha, which means crooked was used in ancient Hindu law text in the
sense of tortious of fraudulent conduct .[3] However, under the Hindu law and the M
uslim law, tort had a much narrower conception than the tort of the English law.
The punishment of crimes in these systems occupied a more prominent place than
compensation for wrongs. The law of torts in India presently, is mainly the Engl
ish law of torts which itself is based on the principles of the common law of En
gland. However the Indian courts before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. The application o
f the English law in India has therefore been a selective application.
In this context, in M.C. Mehta v. Union of India[4], Justice Bhagwati observed-
We have to evolve new principles and lay down new norms which will adequately dea
l with new problems which arise in a highly industrialized economy. We cannot al
low our judicial thinking to be constructed by reference to the law as it prevai
ls in England or for the matter of that in any foreign country. We are certainly
prepared to receive light from whatever source it comes but we have to build ou
r own jurisprudence.
During British rule, courts in India were enjoined by Acts of Parliament in the
UK and by Indian enactments to act according to justice, equity and good conscie
nce if there was no specific rule of enacted law applicable to the dispute in a
suit. In regard to suits for damages for torts, courts followed the English comm
on law insofar as it was consonant with justice, equity and good conscience. The
y departed from it when any of its rules appeared unreasonable and unsuitable to
Indian conditions. An English statute dealing with tort law is not by its own f
orce applicable to India but may be followed here unless it is not accepted for
the reason just mentioned.
Tort Law In India Whether Unnecessary
Truly speaking the entire law of torts is founded and structured on morality. The
refore, it would be primitive to close strictly or close finally the ever expand
ing and growing horizon of tortious liability. Even for social development, orde
rly growth of the society and cultural the liberal approach to tortious liabilit
y by court would be conducive. - Sahai. J.[5]
The observation made by Hon ble Sahai.J dispels any illusions as to the necessity
of the law of torts. His observations also envisage the growth of tort litigatio
n in India. To fully asses the role played by tort law in a modern society, it w
ould be instructive to turn to the history England during the last three centuri
es. This is for two reasons firstly, tort litigation in England has grown signif
icantly, making it an interesting study and secondly, the law of torts in India
has been largely borrowed from the English law of torts.
The outstanding fact of England s legal history relevant to the present context is
the growth of her own tort law from small beginnings to the size and status of
a separate branch of law. This was the work of her lawyers and judges who develo
ped the action for damages as a remedy for violations of rights and duties and f
ashioned it as an instrument for making people adhere to standards of reasonable
behaviour and to respect the rights and interests of one another.
As a result, the English people benefited by the cultivation of habits of though
t and conduct which helps social peace and co-operative effort, inculcated a liv
e sense of individual rights which they do not hesitate to ascertain in courts o
f law. The necessary corollary of this is the formulation of a large body of rul
es defining in detail the rights of the individual in relation to others and the
conditions in which he can assert them in a court of law. So we have a body of
law whose rules have grown and are constantly growing in response to new concept
s of rights and duty and new needs and conditions.
If it is true to say that the English people attained during this period, a degr
ee of social unity and integration enabling them to achieve phenomenal success i
n various aspects of their life, activity and welfare, it is difficult to resist
the inference that among the many forces and influences that made this possible
, was the development of their system of law and justice so as to afford securit
y to the citizen in his life, person, property and rights and interests which he
values. An integral and important part of this system is tort law. [6]
Evidence of its importance is afforded by the large and growing volume of litiga
tion and case law in actions for torts of various kinds and in particular those
of defamation, negligence and nuisance. In deciding these actions English judges
and juries have tried to make their decisions sub-serve the purposes already st
ated. They have taken care to allow claims only when they are just and make thei
r awards of damages serve, on the one hand as a deterrent of wrong doing and on
the other, afford satisfaction to parties suffering from injury or loss. The vie
ws here stated find support in the almost whole sale adoption of tort law of Eng
land along with her other laws by progressive nations like those of the U.S.A, C
anada and Australia.
Though we have done likewise in borrowing the English law of tort, we have to ma
ke a far greater use of it than we do now for making it serve the purposes for w
hich the people of other countries aforesaid have used it. The use made of it in
these countries in evidenced not only by the case law in their courts but also
by the continual interest evinced by their lawyers, judges and professors in the
development of this branch of law by means of their contributions to the growin
g volume of literature on it.
It is undeniable that we cannot afford to neglect any agency which can help to r
egulate individual conduct in conformity with the needs of social peace and cont
entment which are the basic factors on which our plans of national advancement c
an rest. It is hardly necessary to add that while adopting English rules and the
ories, we have to make alterations and adaptations of them which are demanded by
conditions in India as observed by various Indian Judges[7] and also take note
of the great changes in this branch of law that are taking place elsewhere.
Therefore it is unnecessary to state that, there is absolutely no scope of doing
away with this branch of law. Some may argue that the law of torts merely plays
merely a role of a residuary law. However bearing in mind the facts above menti
oned it is clear that there is no truth in this argument.
Tort Whether Simply Overlooked
The next logical progression would be to determine whether tort law has been sim
ply overlooked. The development of the absolute liability rule in the M.C. Mehta
case and the Supreme Court s direction on Multi national corporation Liability, r
ecognition of Governmental tort by employees of government, principles on legali
ty of State, evolution of tort of sexual harassment, grant of interim compensati
on to a rape victim, and award of damages for violation of human rights under wr
it jurisdiction, including a recent Rs.20 crore exemplary damages in the Upahaar
Theatre fire tragedy case by the Delhi High Court are significant changes in th
e tort law of India, which affords a preliminary answer that tort law has not be
en overlooked.
There have been a number of enactments such as the Public Liability Insurance Ac
t, 1991, Environment Protection Act, 1986, Consumer Protection Act, 1986, Human
Rights Protection Act, 1998, Pre-Natal Diagnostics Techniques Regulations and Pr
evention of Misuse Act, 1994, embodying the new principles of tortious liability
in India. The Motor Vehicles Act, 1988 and judicial interpretation continue to
contribute to development of accident jurisprudence. The unfortunate Bhopal Gas
Leak disaster has triggered a new path of tort jurisprudence, leading to environ
ment tort, toxic torts, governmental torts, MNCs liability, congenital torts, st
ricter absolute liability, etc. Still the Indian Law Reports furnish in this res
pect a striking contrast to the number of tort cases before the Courts.
While most branches of law, eg, crimes, contracts, property, trusts, etc, have b
een codified, it is interesting to observe that there is yet no code for torts i
n India. Most of the development in tort law is the contribution of the Indian J
udges and lawyers. Though recommendations for an enactment on tort law were made
as early as in 1886 by Sir F Pollock, who prepared a bill known as the Indian Ci
vil Wrongs Bill at the instance of the Government of India, it was never taken up
for legislation.
Undoubtedly a code is useful, but it is well to recognise that this branch of la
w is still in the process of growth and while it would be difficult to prepare a
code, it would not also help a proper development of the law to do so. Lack of
a code for the law of torts acts as a deterring factor for it to branch out as a
favoured form of litigation. The growth of tort law in India does not even comp
are to other progressive countries which have put it to much better use as discu
ssed previously.
Acknowledging the fact that a code on torts would be premature for the reasons a
forementioned, it would perhaps be wiser to start with enactments on particular
topics on which the case-law in India is unsatisfactory and has to be rectified.
One of the first recommendations for legislation made by the Law Commission app
ointed by the Government of India is on the subject of liability of the governme
nt for torts of its servants.
Recently the National Commission for Review of Working of Constitution (NCRWC) a
lso recommended a law to give liability of state for torts of its employees in t
he report of the commission headed by MN Venkatachaliah CJ (2002).
One the other hand the reason why an Indian code on this branch of law is premat
ure is that there is very little tort litigation in our courts and there have no
t been sufficient opportunities for applying principles evolved elsewhere or evo
lving principles appropriate to Indian conditions. At present it is a singular c
ircumstance that very few cases of torts go before the Indian courts. However th
is proves to be a Catch 22 situation as until there is a code for the law of tor
ts not many people will prefer to go to the courts for cases involving torts, as
they would not be sure of its outcome.
Conclusion
The law of torts in India is definitely not unnecessary but merely requires enac
tments to make it more ascertainable. Failure of aggrieved persons to assert the
ir legal rights is perhaps to be ascribed not merely to insufficient appreciatio
n of such rights but to other causes as well, e.g., difficulties in proving clai
ms and obtaining trustworthy testimony, high court fees, delay of courts. The el
imination of difficulties which obstruct aggrieved parties in seeking or obtaini
ng remedies which the law provides for them is a matter which is worthy of consi
deration. If these lacunae are removed, India could also witness a growth in tor
t litigation.

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