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.

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, 8990 (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.

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 posner 7, 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 Law at P. 198.

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.

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 England9. 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

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 armies 10. 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 11 decided in 1861 by Calcutta

Supreme Court made 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

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 individuals13. 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;

2.

That the Secretary of State was not liable for anything done in the exercise of

sovereign powers. The P. & 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 regards P. & 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 cases 16. 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

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 Province19, 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

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

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

In Distt. 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

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. Vidyawati to Kasturilal 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

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 the P. & 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 nonsovereign 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

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 of Vidyawati 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 & nonsovereign 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

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. Ibid at 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.

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

36

safely for a period- an activity capable of being undertaken by a private individual,

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

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.

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 cooperation 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

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

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

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

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

37. Association Pool v. Radhabai, AIR 1976 M.P. 164. of water from reservoir had not been completed by the state. In Mysore 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.

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

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. In India 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.

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.

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

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

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. In Rudal 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

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.

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

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;

(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 in Dutton puts the duty too high.

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...?

Ultra vires will not help where there has been negligence 70 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 by Dunlop.72 In Dunlop, 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.

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

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.

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 nonperformance 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:

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.

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. 2. 3. There was no faulty lying of the canal by the state. There was no negligence in laying the same. 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.

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

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

injury done to an individual. Some of the sovereign functions identified by the judiciary are:

87. (i) (ii) (iii) (iv) (v) (vi) Commandering goods during war. Making or repairing a military road. Administration of justice. Improper Arrest. Negligence. 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

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 ultra vires action or should it be confined to certain category of ultra 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

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, in Maneka 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

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 decision 92 which the court thinks right. This would amount to court exercising the discretion on

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) c) If it is actuated by malice or desire to injure for improper reasons. If the authority knows that it does not possess the power to take action in

question.94 Thus in U.K., though the doctrine of Crown 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.

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 Ombudsman.

that the officer or authority knowingly exceeded their power in blatant disregard of law or should have known that they are acting in blatant disregard of law. The basic or cause of action is available in cases of custodial deaths, grossly illegal detentions, custodial torture, rape, gross negligence. In cases exactly like Satish Sharma and Shiela Kaul also, though belonging to the area of discretionary powers, the compensation could be awarded by the court because the cause of action for compensation here was not the ultra vires action, per se, but it is that the authorities knowingly exceeded their power is blatant disregard to the limits of the law? Police Attrocity95 Excessive, or unwarranted, use of force by the police constitutes a ground for seeking relief-both compensatory and asking for investigation and prosecution-from the court. In the two cases reported in the period under survey, the Andhra Pradesh High Court and the Bombay High Court at Aurangabad have deflected the issue from that of deterring culpability and compensation to recognizing the imperative of investigation. In the Maharashtra case, the court declined to act since a commission of inquiry had been

appointed into the alleged incidents of police violence, and it considered any intervention at that stage premature. Where it was established that a constable had assaulted a person in the course of his duty, and that resulted in amputation of a limb, the state was held vicariously liable, and the doctrine of sovereign immunity was expressly rejected. 96 And it held: The fact that a public law remedy lays under articles 32 and 226 of the constitution before the superior courts 95. Council for Protection of HR v. State of Maharastra., (2000) 2 Mah LJ 242. 96. State of Gujrat v. Govindbhai Jakhubhai 2000 ACJ 1305.

in respect of torts committed by police would not take away the power of civil court to great relief by the state agency committing such tort.97 The death of a woman who was assaulted by a constable during a prohibition raid while she pleaded that her nephew was on his way to buy medicines for her child and should not therefore be apprehended is another instance of excessive use of force that has been brought to court. That enquiry into the incident was deliberately allowed to drag acted in aggravation. The court, therefore, directed initiation of criminal proceeding against the police constable concerned for his rude behavior in his pushing her to ground which subsequently ended in her death apart from expediting the departmental enquiry pending against him? The state was directed to pay Rs. 2 lakhs to her family with right to be indemnified by and take such action as may be available to them against the wrongdoer....98 Encounter Killing

The labeling of a person as a member of an extremist organization has provided a shield to the police and armed forces in cases of encounter killings or in fake encounters. An attempt to cover up a death in custody as an encounter killing of member of ULFA has since been reported in Gopal Sharma v. State of Assam.99 A single judge of Gauhati High Court, basing his judgment on judicial enquiry instituted by the court, gave a lie to the assertion of death in an encounter, and directed that Rs. 2, 50,000/- be paid in compensation.

97. Ibid, at 1314. 98. Marriyappan v. State of TN, 2000 Cr LJ 4459. 99. (2000) 1 Gau LJ 643. The judicial dictum adds an imperative to the registering, and investigation of alleged encounter death, to determine the veracity or otherwise of change that the encounter was staged, or fake. Illegal Contention The casual treatment meted out in matters of liberty has led courts to direct that compensation be paid to these detained beyond the prescription of Law. Free legal Aid Committee, Jamshedpur v. State of Bihar 100 is a glaring example of short shift accorded to both the law, and liberty. In an agitation by villagers in April 1991 against Ichha Kharakai Bandh Yojna, a large number of agitators were detained under section 107 Cr PC. Among them was a girl of about 13 years. It was over a month later that she was released. In explanation to the High Court, the Executive Magistrate said that there had been a power failure and he had had to work by candlelight. In that meager light he

had not been able no see the faces and features of arrested persons and, with the police report not mentioning the ages, he had remanded all those produced before him. A fortnight later, when the SDM held court, the girl was remanded without being physically produced, he said. Asserting that the remand, being contrary to the express provisions of law, was illegal and that had been in violation of her fundamental right, the court directed that Rs.10000/- be paid to the girl while holding her entitled to compensation under the public law for in addition to the remedy available under the public law in addition to the remedy available under the private law for the damages for the tortious action of the government servant. 101

100. (2000) 1 Bih LJR 20. 101. Ibid. at 23. The sheer negligence in implementing the court orders resulted in continued, illegal incarceration of an acquitter for 42 days. The court in Trimbak Waluba Sonware v. State of Maharashtra,
102

directed the state to pay Rs. 10000 as compensation for false

imprisonment which, as the court observed, is a type of trespass to the person and is actionable without the proof of special damage.103 This cavalier attitude to laws prescriptions have fostered a climate of unconstitutional conduct which the law that has developed around constitutional tort seeks to allay. In the cases under survey, courts have commonly acknowledged a link between the delinquent and the recovery of compensation. In Durgalal Vijay v. State of M.P.,
104

the state and the SDM were held jointly and severally liable to pay damages

quantified at Rs. 25000 where illegal detention resulted from manipulation of records.

Constitutional tort is essentially viewed as a matter of state liability for infringement of fundamental rights, and it is not an unvarying direction to pass the liability on to the delinquent, even where such officers has been identified. 105 Disappearances The cases of disappearances continue to crop up in the courtroom, and from the north eastern states. Yet, in constitutional tort, the remedy has been limited to direct the payment of compensation as an interim measure. 106 The Supreme Court, in State of 102. (2000) 2 Mah LJ 498 at 502. 103. Ibid at 501.

104. (2001) 2 Jab LJ 114. 105. Free legal Aid Society v. State of Bihar, 2000 All LJ 1914. 106. Smt T. Joicy v. UOI, 2000 CrLJ 764.

Punjab v. Vinod Kumar

107

merely paused to explain that no trial court would take a cue

about liability of delinquent officers from interim compensation award passed, thus emphasizing the distance between liability in the realm of civil remedy of compensation and criminal trial, and the influence the former may have on the latter. Compensation should not be awarded in other cases, just because the exercise of power has been held to be ultra vires on the ground of violation of principle of natural justice. As grant of compensation in such cases would contradict two basic principle of administrative law, (i) (ii) Courts do not go into merit of exercise of power, Administrative discretion should not be fettered.

Strict liability as Basis

The very fact that an ultra vires action per se can not be the basis or cause of factor for state liability in compensation makes the doctrine of strict liability inapplicable in such cases. In fact, even under the cases covered by the Rudal Shah principle the compensation was not awarded on the basis of strict liability. Strict liability means no fault liability, and in the cases covered by Rudal shah principle, government was asked to give to explanation was awarded for the fault that the authorities blatantly exceeded their power, i.e, they knew or should have known that their action was violative of law. It is only in M.C.Mehta case (Oleum Gas Leakage Case) that the liability was attached on the basis of strict liability. Really, speaking here, it was not states liability to compensate. The State was only directed to implement the courts order directing a private industry to compensate. It is submitted that strict liability should not be said to be basis for liability to 107. (2000) 9 SCC 742 at 744.

compensate. The doctrine of state liability was invoked in Nilabati Behra case to do away with the defense of sovereign immunity. However, even in Nilabati Behra, factually state was made liable on no fault basis. State was not made liable just because the petitioners son was found dead, but because the state was given an opportunity to explain; and fault was found with state of blatant disregard of law. Suppose in this case state would have reasonably proved that the detenue escaped himself and met with an accident, would the court still have asked it to pay the compensation? In UK and USA also, the principle of strict liability has not been generally applied against public bodies.

In cases decided under Rudal Shah principle, the Supreme Court has rightly made the state liable to pay the compensation; and has observed in some of these cases that state may, if it desires, recover it from officers found at fault by it.108 The law relating to award of compensation in writ petitions is a new development in administrative law, which should be based on the well accepted principle of administrative law. Thus, the compensation in writ petitions should be awarded only in cases strictly covered by Rudal Shah principle. Generally speaking, ultra vires, action per se and doctrine of strict liability can not/ should not be the basis of award of compensation in the area of exercise of administrative discretion. Liability to pay compensation should not be attached personally to officers, unless it is proved in a suit that action was malicious negligent or that the officer knew or should have known that he is exceeding his power. Discretionary function can be properly performed only if the officer is free from the need of considering his own pocket. Also, in many cases, he will 108. Indian Bar Review, Vol 25 (4) 1998.

be ill-equipped to bear the loss. For instance, award of compensation against concerned officers in a case where a person is released from preventive detention, or in a case where he is acquitted under a special criminal law like TADA on the ground that officers action was ultra vires may deter an honest and conscientious officer from taking action against anti-social elements. He will be prompted to play safe and not to take risk, if his lifetime earning is likely to go in payment of compensation. In view of this, even if, in a suit, the person aggrieved proves malice or knowledge on the part of officer, the state alone

should be made liable to compensate. Then state should be left free to recover from officer if it thinks fit, and if he is found responsible by his department. Generally speaking, ultra vires, action per se and the doctrine of strict liability can not/ should not be the basis of award of compensation in the area of exercise of administrative discretion. Liability to pay compensation should not be attached personally to officers. The above discussion on this topic of state liability to compensate for wrong of its officers is by no means exhaustive, it has only attempted to draw attention to some of the basic questions of administrative law. Well informed discussions and studies, as good practice needs good theory and good theory needs good practice. Both are complementary to each other for an orderly and just society. Damages for Government Torts It is not the practice of courts to award damages in writ petitions under articles 32 and 226. For this purpose, one has to take recourse to the suit procedure. This traditional view is indicated in Jiwan Mal Kochar v. India109. The petitioner claimed damages against Union of India, the State of Madhya Pradesh and other officials involved for the loss, humiliation and indignity suffered by him as they were responsible for certain remarks passed by the courts in his absence. The Supreme Court merely contended itself by passing the order that those remarks shall not be taken into consideration in any proceeding against the petitioner. It followed the traditional approach in denying the relief of damages by saying that the relief prayed for can not be granted in this proceeding under article 32 of the constitution. However, the Supreme Court has departed from this traditional rule in some cases of gross violations of individual rights

by the administration. For example, in Rudal Shah,110 the Supreme Court awarded compensation of Rs. 35000 as an interim measure in an article 32 petition. 111 In some other cases, instead of awarding damages the court has given exemplary costs in favour of individuals whose rights of personal liberty were grossly violated by the executive. In Devki Nandan Pd. v. Bihar,
112

the court award exemplary cost of Rs. 25000. Here, the

government had disregarded for a long period of 12 years the pre-emptory directions of the Supreme Court to government to pay pension to the civil servants. Constitutional Tort- Compensation for its violation The constitution of India provides under article 21 protection to life and personal liberty. The Maneka Gandhi decision revolutionized the concept of protection to life and personal liberty. Now article 21 protects the life and personal liberty of citizens not only from 109. 110. S.N. Jain, Money Compensation for Admn Wrong through Article 32, 25 J.I.L.I 119. 111. AIR 1983 SC 1134. 112. AIR 1978 SC 597.

executive action but also from legislative action. Nevertheless, article 21 compels the state to provide compensation to the victims of such social disturbance, even though it may not compensate totally, for the loss suffered. This concept of government liability can be explained by the judgment of High Court of Jammu & Kashmir, i.e, Jagdish Rai & etc. v.State of J&K.113

In this case, curfew was placed in the city of Kishtwar for 3 days. When the petitioner visited his business premises, he found that the shop was badly damaged. Articles were either stolen or damaged. The loss was competed to the extent of Rs. 3.5 lakh. The authorities in the state of J&K were informed of the loss accrued. The state failed to compensate the petitioner. Hence he approached the High Court. The existing rules did not prescribe the payment of ex-gratia where loss is to immovable property, beside no policy for the above loss existed. The business establishment was targeted by the anti-social elements. The shop were looted and destroyed. The state machinery did not respond to their call nor the police protected them. Some amount of ex-gratia was paid but it was not sufficient. The High Court of J&K referred to its earlier observation made in the case of M/S Indra Puri General Store v. UOI.114 It puts the limitation on the powers of the executive. The term life used in article 21 is not only restricted to the nominal existence but extends to the inhibition against its deprivation to all those limits and faculties by which life is enjoyed. It also includes the right to livelihood. The ambit and scope of right to life can not be extinguished or taken away but embraces within its ambit the right to livelihood because no person can live 113. AIR 1999 J&K 156. 114. AIR 1992 J&K 11. without the means of living. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his eight to life would be to deprive of his means of livelihood to the point of abrogation. 115 Hence, it held that it is the duty of the state to protect the citizens and also to compensate them.

The High Court of J&K then referred to the decision of Allahabad High Court in the case of Uttrakhand Sangarsh Samiti v. State of U.P.116 The Allahabad High Court observed that when there is breakdown of law and order then there when there is clear violation of human rights. The division bench was of view that the dependents of those who die are entitled to the compensation, which was fixed at Rs. 10, 00,000. The ladies who were subjected to molestation were found entitled for compensation to the extent of Rs. 5, 00,000. For grievous hurt compensation was fixed at Rs. 25000/- and persons suffering from permanent disablement entitled to Rs. 2, 50,000. The division bench treated violation of article 21 as constitutional tort. This was because the state administration was responsible for not reacting when called for. The Jammu & Kashmir High Court in accordance of the above observations were of the view that state was under an obligation to protect the life, liberty and property of its citizens. It held that it is the duty of the state to protect the citizens and also to compensate them. The state was reminded to adopt human approach in these matters. It is the obligation of the state to provide protection to its subjects. This is the primary job of the state . In the discharge of these obligations lies the welfare of the state and its subject. It is 115. Ibid, Para 5. 116. 1996 (1) WC 469. to this sovereign power the petitioner is looking forward for protection. Accordingly the state was directed to pay compensation to the petitioners on the same line on which it is paying the citizens who had become or became the victims of militant related violence.

The judicial activism which has been present in certain cases like the Union Carbide case or Nilabati Behra case, are typical examples of development in constitutional tort. This outlook has profoundly influenced the direction which tort law has taken. The concept of sovereign immunity has been axed; the vicarious liability of the state concept has been recognized in several cases. Henceforth, it is very much evident that magnum of the wrong, the parties involved, and the gravity of situation has decided the delivering of judgments relating to torts. This fact shows that judiciary is in fact, active on setting precedents on tort law. There has been a scattered array of acts and statutes relating to different kinds of tort, like Motor Vehicle Act, Water Pollution Act and Air Pollution Act etc. The centres decision to reconstitute the group of ministers headed by Union Minister P.Chidambaram to examine the issue related to Bhopal Gas tragedy is welcome, though belated. Union Law Minister M. Veerappa Moily has also hinted at framing a new law to provide adequate compensation to the victims of such disasters. The Bhopal Court simply followed the rulebook and gave two years jail to 8 officials of the Union Carbide India Ltd. and released them on bail. Surely, we need more stringent and tougher laws to deal with them to act as deterrent. Compensation is another area that cries for attention. One reason for the raw deal given to Bhopal victims is the absence of suitable law of torts in India as in US and UK. Unfortunately, even after 25 years of the Bhopal disaster, India does not have a formal law of torts which would allow victims of any industrial tragedy to move court for compensation. The people in US and UK enjoy a greater degree of protection against industrial disasters because of their time-tested tort laws. In the US, for instance, lawyers

charge about 33% of total amount awarded under any court order or offered as a settlement to the victims as contingency fees. In India, though courts have extended the scope of civil damages, there is still no suitable law to deal with a Bhopal-like disaster. The centre had enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, in a hurry without proper examination of all the issues. The legislation that Mr. Moily is contemplating now should not only have a specific provision to deal with mass disasters caused by gross negligence in storing hazardous117 substances but also provide for speedy and adequate compensation to victim. A landmark case needs mention here, because of progressive approach of the Indian judiciary in this regard. A more stringent rule of strict liability than the rule then the rule in Ryland v. Fletcher was laid down by the Supreme Court in M.C.Mehta v. UOI,118 the court gave the reasoning that the old rule of the common law did not meet the modern techniques of science and industrial society. There is a need to depart from that rule whereby the industries ought to be aware of their responsibility, if they are taking benefit out some hazardous business. This approach of the Supreme Court clearly shows that there is no need for settled or a model tort law structure in India. Its so-called branches are now assuming different dimensions. Thus, there is a present grund-norm or a basic covenant, which directs tort law. That grund-norm may be located in the common law. 117. The Tribune, 11th June, 2010. 118. Another thing, which needs highlighting at this juncture, is the Consumer Protection Act, 1986 in India. It has assumed a different jurisprudence altogether and has

become a different stream in itself. It also provides for trying of medical negligence cases before a consumer forum. It is a vitalizing point again, that since it has assumed a statute and that of a very high degree, it has become important.