“The State is the product of human consciousness. Human consciousness postulates liberty, liberty involves rights and rights demand the state.” - Thomas Hill Green, ‘the theory of states’
The person whose fundamental or any other legal right is violated he can have direct access to the Supreme Court or the High Court as the case may be. This shows that the constitutional framers have given a recognition and respect to the right of the people. On the contrary the liability i.e. the constitutional liability has been imposed upon the state to compensate the loss or damage done to the rights of people by the state through its authorities or undertakings. Besides the constitutional provision the state has made no special attempt to compensate the person for the infringement of rights done by the state. There are very few provisions in various statutes imposing legal liability on the state in varied circumstances for e.g. compensation to be paid for the land acquisition for public project etc.
However there is no separate statute imposing liability on the state for the violation of people’s rights because of the wrongful act or wrongful omission done by the public authorities. There are end numbers of incidences where the state and its authorities arbitrarily and scrupulously has violated the rights of person.
The Supreme Court of India has read several rights, which has not been expressly provided by the Constitution, enshrined under Art.21 of the Constitution of India. But these rights are oftenly gets infringed by the
India is a country which has accepted the notion of Welfare State. It means the country has accepted the liability towards securing the public welfare and to sub-serve the interest of all its citizen without making any discrimination on any grounds of race, sex, religion, place of birth etc. however incidences were happen where the state has fall short in discharging its liabilities towards satisfying the needs of victims and to compensate them.
No civilized system can permit an executive to play with the people of its county and claim that it is entitled to act in any manner, as it is sovereign. The concept 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 unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of (the) State as a juristic person, propounded in nineteenth century as sound sociological basis for State 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 compartmentalization 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 society and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken”.
Thus in N. Nagendra Rao Vs. State of AP ; the Apex Court held “In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist.
Obligation is the vinculum juris or a bond of legal necessity which binds together two or more determinate individuals. In politics, obligation takes the form of a bond between man as a citizen and the authority under which he lives “to perform an act, or a number of acts, for the governing authority.” Obligation includes every duty enforceable by law.
An individual has to follow rules of behavior in society for his own good and for the good of others. Society makes unwritten rules of behavior in the form of customs and usage, and the state makes written rules known as laws. The individual has to follow certain dos and don’ts in the state. These are his positive or negative obligations or duties. For example, payment of taxes in time regularly and fully is a positive duty and refraining from robbing others is a negative duty. Obeying the laws is his obligation towards the state.
Obligation of state
The state was established to meet the needs of the individual and society, and hence it has to discharge properly obligations expected of it. The proper functioning 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 discharge other functions, political social and economic for developing the personality of the individual.
1. Human consciousness postulates liberty
According to Green the state is the product of human consciousness. Human consciousness postulates freedom as the necessary condition of its growth and development. Consciousness differentiates the person from other lower animal. Green defines liberty as the power to do or to enjoy things worth doing or worth enjoying. A society can be said to grow in freedom when its members are in a position to develop their powers of contributing to the social good, when they are able as a body to make the most and the best of themselves.
2. Liberty involves Rights
Human consciousness postulates liberty and the freedom lies in self-realisation and the self-realisation is only possible by enforcing a system of rights. According to Green rights are claim of individuals. The basis of rights was not legal recognition but common moral consciousness.
3. Rights demand or Necessitate State
The claims to pursue ideal objects recognized by the moral will of the community are rights. Freedom is possible only through a system of rights. To acquire any reality and value such rights must be enforceable. So in every society there is a need of power that can enforce rights and punish those who break the rights of the individuals. So rights demand a state which can enforce these rights. Therefore the state is a necessary instrument for the protection and enforcement of man’s rights. State does not create the rights; it only protects them.
What is significant is that the doctrine of sovereign immunity has not become obsolete, but it is very much available as a defence though not in the cases of public law remedy based on strict liability for contravention of fundamental rights, but in cases of other tortious acts committed by public servants while exercising the statutory functions.
Another significant factor which need to be mentioned here is that the dictum of the Supreme Cowl in Kasturilal Jains case has not been over ruled or set aside and has only been distinguished on facts in Nilabati Beheras case; by holding that the defence of sovereign immunity is available. The Supreme Court reiterated its earlier decision In Kasturilal Jains case though not in that form, but in a modified form – the modification being that in the case of violation of the fundamental rights of the citizen by the tortious acts of the public servants committed while discharging the statutory functions delegated to them under a statute, the State is vicariously liable.
In view of the judgement of the Supreme Court in Smt. Nilabati Beharas case the situation has again become resuscitated, in as much as the defence of sovereign immunity is now available, in a case for damage save the tortious acts of the public servants committed while discharging their statutory functions which affected the life and liberty of the individual, but not the property. Of course the individual liability of the public servant for his tortious acts is always there. The victim and his legal heirs can always therefore proceed against the erring public servant for his tortious acts in a private action. But such remedy against the public servant well-nigh is as good as no remedy at all. It is neither practical nor efficacious remedy and is nothing but chasing a mirage.
That apart the other side of the coin is also to be seen. The public servant is not acting in his individual capacity, but as an agent or a representative of the State. At times in his anxiety while discharging the official functions might exceed his powers and limits. Absolutely no personal motive can be attributed in such cases. Therefore, it is not reasonable to mulch the official, with damage, who committed the act of negligence while discharging his official functions in good faith. Unless motive is attributed to him, he cannot be made liable personally for his official acts. But all the same the erring official is not immune from any action, and his responsibility shall be fixed, and proceeded against, either departmentally or by initiating appropriate action including prosecution. Indeed such an action will deter the public servants and desist them from omitting arbitrary and excessive acts under the garb of official duties.
It is needless to emphasize that ours is a democracy. The preamble to the Constitution reads that India is a Sovereign Socialist Secular Democratic Republic. In a democracy Rule of Law is the basic requirement. The purpose of the Rule of Law is to protect the individual against arbitrary exercise of power. The exercise of power by the administration shall therefore be in consonance with the rule and the person exercising the power is always accountable to law. If a property is seized by the police or other authority while exercising the powers conferred under a statute (delegated statutory power) from an individual, so soon after the purpose of such seizure ceases the public officer or the authority holds that property till it is restored, to the original owner or the person entitled to the possession thereof, in trust for the benefit of such owner or the person. If such property is lost or otherwise could not be delivered and the owner or the person were too he told tomorrow that he has no remedy - whither democracy and Rule of Law? It is no doubt that it is an attribute of sovereignty that a State cannot be sued in its own courts without its consent. The immunity of the Crown was based on the old feudalistic notions of justice namely the King was incapable of doing a wrong, but it was realised even in the United Kingdom, that principle had become outmoded and that is the reason why the British Parliament passed the Crown Proceeding Act, 1947.As per the provisions of the said Act, the Crown is subjected to all those liabilities in tort to-which a private person was subjected to the Crown is also liable for statutory negligence in the same way as an individual. Therefore, in England the Governments privileged position as regards the law of torts, has disappeared.
The irony is, the law of torts in our country which is based on the common low principles of England is nothing but the legacy left behind by the British Government and even though the British Government had brought in a suitable legislation to change the feudalistic view prevalent in the United Kingdom, that King can do no wrong, by passing the Crown Proceedings Act, still we did not bring in a similar suitable legislation to fulfill the needs and aspirations of the people in tune with the democratic principles. It is apt here to quote the observation of the Supreme Court in Kasturilal Jains case thus: It is time that the legislature in India seriously consider whether they should not pass legislative enactments to regulate and control their claim from immunity in cases like this on the same lines as has been done in England by the Crown Proceedings Act, 1947 Despite the judicial activism striking a realistic note, which reduced the magnitude of the hardship by modifying the feudalistic principles that King can do no wrong and King can sue but cannot be sued still the much needed respite, suitable to the needs and aspirations of the people in a Welfare State, has not been given yet. It is high time therefore for the Parliament to ponder over the issue to bring in a suitable legislation after identifying the areas, and limiting the applicability of the doctrine to those fields alone as in the case of the Crown Proceedings Act, 1947 passed by the British Parliament.
Conclusion & Suggestions
Probity in Governance
Integrity, in the widest sense of the term, in the holders of public offices is what distinguishes a good public administration from a bad one. There may be other indicators but in the absence of integrity other competencies are not capable of yielding the desired results. Integrity is much more than financial honesty in official dealings. Unless public office is regarded as a trust that a public servant holds for public good, even the most enlightened policies for promoting the welfare of the society will not work. How to restore this ethical and moral dimension to public life in India is one of the most crucial issues of governance at present.
We cannot hope to succeed in this endeavour if we rely solely on legislation. For instance, the spirit of cooperative, team work, helping the deprived and the weak to obtain the protection and the benefit of the law require a vigorous social and political movement to really become part of our work culture and social behaviour. However, we should at the same time block some of the escape routes that the dishonest find to their advantage in the existing laws.
One of the measures adopted in several western countries to fight corruption and mal-administration is enactment of Public Interest Disclosure Acts which are popularly called the Whistle-blower Acts. Similar law may be enacted in India also. The Act must ensure that the informants are protected against retribution and any form of discrimination for reporting what they perceived to be wrong-doing, i.e., for bona fide disclosures which may ultimately turn out to be not entirely or substantially true.
Misfeasance in Public Office
The current situation is that public servants cannot be held personally responsible for their arbitrary, malicious, and outrageously unfair actions that cause injury to the public and loss to the State. A person can be detained illegally and subjected to unauthorised violence in custody, resulting in death, without any individual being called to account and having to pay damages for his patently illegal and arbitrary action. Other such examples can be cited. There is no law at present that defines the principles on the basis of which misfeasance can be rendered punishable. Time has come to consider framing a law that would place responsibility on public servants for damages/compensation for patently mala fide actions. The basis for action under the law may be an audit report or a report by a commission, committee or body competent to examine the relevant facts. The Commission recommends that the Government examine the proposal for enacting a comprehensive law to provide that where public servants cause loss to the State by their mala fide actions or omissions, they would be made liable to make good the loss caused and, in addition, would be liable for damages.
Need for establishment of a similar institution in India-
Roger Warren Evans enunciates certain principles of law which should be incorporated into the English administrative law, these being as under :
1. The action for a declaration should be obtainable in the county court, whether or not other relief is claimed. The present position is that such a declaration can be obtained only in the High Court.
2. It should be a general rule that an individual has a right to receive from an administrative authority a statement of the reasons for its decision in his case.
3. It should be a general rule that the execution of an administrative decisions should not be suspended pending the hearing of an appeal, unless the court otherwise orders.
4. There should be a right of action sounding in damages, and on proof of damage, where an individual has suffered loss or damage as the result of a fault on the part of an authority, even where the fault does not amount to a breach of statutory duty or other tort under existing law.
I am of the opinion that the creation of an administrative Division of the High Courts to which the various administrative jurisdictions would be transferred to avoid time-consuming conflicts of jurisdiction for the purpose of deciding ancillary matters arising in the course of administrative appeals.
In France, there is highly developed centralized administration hence it would be in appropriate to establish in India, an institution similar to Conseil d’Etat. In India the administrative law has not been developed to that extent. However, the administrative law taking shape in India, therefore it will be necessary to develop administrative courts on the lines of France an d in that event the establishment of a Council of State on the lines of the French Counsel of Etat woud be necessary because that will serve as counterpoise to the arbitrary action of the administrators.
The creation of a separate hierarchy of administrative courts brings about a clear division between the spheres of civil and administrative law. There are separate law reports in both branches of law. In this context, it is desirable that India should develop a well ordered system of administrative law which may be able to absorb the new relations of public law into this legal system.
MAHENDRA SUBHASH KHAIRNAR
Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad.
 The Constitution of India provides remedial rights i.e. right to remedy under Art. 32 and Art. 226.
 (AIR 1994 SC 2663)
 POLITICAL OBLIGATION-DR. M SRINIWAS RAO
 NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION, A Consultation Paper* on LIABILITY OF THE STATE IN TORT