Tortious Liability Of The Administration- Constitutional And Other Provisions (Administrative Law)
· Article 300 of India Constitution :
(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substitute for the Dominion in those proceedings.
Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.
An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India a State may sue and be sued by the name of the State.
The Second part provides, inter alia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted. The Third part provides that it would be competent to the Parliament or the legislature of State to make appropriate provisions in regard to the topic covered by Article 300(1).
The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O Navigation Company V. Secretary of State for India , in this case a piece of iron funnel carried by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State for India- in council for the negligence of the servants employed by the Government of India. The Supreme Court delivered a very learned judgment through the Chief Justice. The Supreme Court at Calcutta, CJ held that “the Government will be liable for the actions done by its servants while doing non-sovereign functions but it won’t be liable for injuries caused while pursuing sovereign functions.
Similarly in Nobin Chunder Dey V. Secretary of State , the Calcutta High Court gave full effect to the remarks in rejecting the plaintiff’s plea for damage against wrongful refusal to him of a license to sell certain excisable liquors and drugs resulting in the closure of his business on the ground that grant or refusal of a license was a sovereign function lying beyond the reach of the tortuous liability of the State. Since then, the distinction between the sovereign and non-sovereign functions of the State has been the basis of a number of judicial pronouncements
· Under Article 294 (4) of the constitution, the liability of Union Government or a state Government may arise ‘out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respects of tortuous acts also. Under article 300 (1), the extent of such liability is fixed. It provides that the liability of the Union of India or State Government will be same as that of Dominion of India and the Provision before the commencement of the Constitution.
The English law with regard to immunity of the Government for tortuous acts of its servants is partly accepted in India. The High Court observed: as a general rule this is true, for it is an attribute of sovereignty and universal law that a state cannot be used in its own courts without its consent.’ Thus a distinction is sought to be made between ‘sovereign functions’ and ‘non-sovereign functions’ of the state. The State is not liable in tort.
· Under section 80 of the Code of Civil Procedure, 1908, no suit can be instituted against the government until the expiration of two months after a notice in writing has been given.
· Under section 82 of the Code of Civil Procedure, 1908, when a decree is passed against the Union of India or a State, it shall not be executed unless it remains unsatisfied for a period of three months from the date of such decree.
· Under article 112 of the Limitation Act, 1963, any suit by or on behalf of the Central Government or any State Government can be instituted within the period of 30 years.
Author details: SAKSHI RAWAT (University of Petroleum & Energy Studies, Dehradun)
The views of the author are personal only.