ALIGARH MUSLIM UNIVERSITY  

MALAPPURAM CENTRE 

END TERM
TOPIC- ACT OF STATE
SUBMMITED BY  SUBMITTED TO 
ABDUL AZEEM  DR. SHAHNAWAZ
GI9887  AHMAD MALIK
18BALLB31 ASSIT.PROFESSOR
DEPARTMENT OF LAW
State Liability on Administrative Action With Reference To Civil Rights in India
“The State is the product of human consciousness.
Human consciousness postulates liberty,
liberty involves rights and
rights demand the state.” -Thomas Hill Green
Statement of Research Problem-
India is a country that has accepted the notion of Welfare State. It means the country has
accepted the liability towards securing the public welfare and to serve the interest of all citizens.
However many incidences occurred when the State had fallen short in discharging its liabilities
towards satisfying the needs of victims and to compensate them. When incidences of violation of
legal rights of an individual occurs and for which no immediate relief is provided the Law of
Torts comes to help.

No civilized system can permit an executive to work arbitrarily and claim that are entitled to act
in any manner, as if he is a sovereign. The concept of public interest has changed with structural
change in the society. No legal or political system today can place the State above the law as it is
unjust and unfair for a citizen to be deprived of his rights or liberties illegally or by negligent act
of officers of the State without any remedy. The State is a juristic person, propounded in
nineteenth century is a sound sociological basis for State immunity. The circle has gone round
and the emphasis now is the fundamental principle of liberty, equality, fraternity and the rule of
law, independence of judiciary and following the principles of natural justice.

The modern social thinking of progressive societies and the judicial approach is to do away with
archaic State protection and place the State or the Government at par with any other juristic legal
entity. Any watertight compartmentalization of the functions of the State as “sovereign and non-
sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern
jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted.
But with the conceptual change of statutory power being statutory duty for the sake of society
and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely
because it was done by an officer of the State; duty of its officials and right of the citizens are
required to be reconciled, so that the Rule of Law in a Welfare State is not shaken.

The state was established to meet the needs of the individual and society, and hence it has to
discharge properly obligations expected of it. The proper functioning of the state depends upon a
well-organized system of duties and rights. It should also promote the health of the individuals,
spread education and discharge other functions, political social and economic for developing the
personality of the individual.
Role of the State and Law of Tort
In any modern society, interactions between the State and the citizens are large in their number,
frequent in their periodicity and important from the point of view of their effect on the lives and
fortunes of citizens. Such interactions often raise legal problems, whose solution requires an
application of various provisions and doctrines. A large number of the problems so arising fall
within the area of the Law of torts. This is because, where relief through a civil court is desired,
the Law of Tort figures much more frequently, than any other branch of law. By definition, “a
tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for
which the remedy is unliquidated damages”. It thus encompasses all wrongs for which a legal
remedy is considered appropriate.

Given this importance of tort law, and given the vast role that the State performs in modern
times, one would reasonably expect that the legal principles relating to an important area of the
Law of Torts, namely, liability of the State in tort, would be easily ascertainable. However, at
present, this ideal is not at all achieved, & in reality, in India. It is for this reason that the
researcher found it necessary to consider the subject and to suggest certain reforms.

In the State of A.P. v. Chella Ramakrishna Reddy, The Hon’ble Supreme Court has also
concluded in the following words, “….. the law has marched ahead like a Pegasus but the
Government attitude continues to be conservative and it tries to defend its action or the tortious
action of its officers by raising the plea of immunity for sovereign acts or acts of State, which
must fail.”
Tortious liability- an Indian scenario
The Law of torts as administered in India in modern times is the English law as found suitable to
Indian conditions and as modified by the Acts of the Indian Legislature. The word ‘tort’ is
derived from the latin term tortum-to twist, and implies conduct which is twisted or tortuous. It
now means a breach of some duty independent of contract giving rise to a civil cause of action
and for which compensation is recoverable.

To constitute tort there must be a wrongful act. The word ‘act’ in this context is used in wide
sense to include both positive and negative act, i.e. acts and omissions. Wrongful acts which
make a person liable in tort are positive acts and sometimes omissions. An omission includes not
only failure to do something in doing an act but also a bad way of performing the act. The law
does not impose liability for mere omissions. An omission incurs liability when there is a duty to
act.
Tortious liability of State and its different phases
Tort law has been regularly concerned with the problem of determining civil responsibility for
injury. Widespread attitude which associated injury with bad luck or deficiencies in character has
been gradually replaced by one which presumes that most injured persons are entitled to
compensation, through the legal system or some other mechanism. This transformation is the
prevailing ethos of injury in America has been an important determinant of the state of tort law.

Throughout the history of the Law of Torts in America creative scholars and judges have sought
to shape tort law to approximate their ideal conceptions of the field. But the subject matter of tort
law has proved sufficiently amorphous to resist that shaping, so that a fresh supply of material
has always existed for new generations of scholars and judges, and the relationship between
changing ideas and changing legal doctrines has sometimes been obscured.

Different comprehensive standards of liability in tort (negligence, strict liability) have been
formulated at different times. Competing central purposes for tort law (admonishing
blameworthy conduct or compensating injured persons) have been articulated. The ambit of tort
law's coverage has been expanded theoretically (to include "traditional" areas of the Law of
Sales) and contracted (to exclude areas superseded by Constitutional Law). Tort law has been
thought of as essentially a private law subject or as "public" law in disguise. The image of the
subject of Torts has varied from that of a unified collection of comprehensive and interlocking
principles of civil liability, embodied in appellate cases, to that of a grab-bag collection of
diverse judgments by individual courts. Yet none of these changing intellectual developments
has affected the integrity of tort law itself. Tort law's integrity has come from a recurrent need in
American society for some legal response to the problem of responsibility for civilly inflicted
injuries. In the last hundred-odd years Americans have been injured in all sorts of diverse ways;
in that time secular explanation's for, and responses to, the problem of injuries have
predominated. Tort law has been a major explanatory and responsive device. Its integrity and its
amorphousness as well, can be linked to the place of injury in American life.

Though in India the risk is not of a drift towards the American style but with the widening of the
Right to Life guaranteed by Art. 21 of the Constitution of India to embrace almost everything
which goes to make a man’s life meaningful, complete and worth living with dignity, the risk is
that the blame for every misfortune may be laid at the doorstep of the State.
Art. 21 and liability doctrine
The Case of Rudul Shah, lead to inference that the defense of sovereign immunity is not
available when the state or its officers acting in the course of employment infringe a person’s
fundamental right of life and personal liberty as guaranteed by the Art. 21 of the Constitution of
India. The supreme Court cases discussed above did not refer to the doctrine of sovereign
immunity or the case of Kasturilal on which the following submission was made:

“It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the
ground that it did not consider the nature of liability of the state when there is deprivation of
fundamental right.”

The modern social thinking of progressive societies and the judicial approach is to do away with
archaic State protection and place the State or the Government on a par with any other juristic
legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and
non-sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern
jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted.
But with the conceptual change of statutory power being statutory duty for the sake of society
and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely
because it was done by an officer of the State; duty of its officials and right of the citizens are
required to be reconciled, so that the rule of law in a Welfare State is not shaken.
Liability and Art. 300 of the Indian Constitution
The law in India with respect to the Liability of the State for the tortious acts of its servants has
become entangled with the nature and character of the role of the East India Company prior to
1858. It is therefore necessary to trace the course of development of the law on this subject, as
contained in article 300 of the Constitution. Sec. 65 of the Government of India Act, 1858, which
is the parent source of the law relating to the liability of the Govt. provided that; ‘All persons and
bodies politic shall and may have and take the same suits, remedies and proceedings, legal and
equitable against the secretary of state for India as they could have done against the said
company’. This provision was continued by the succeeding Govt. of India Act, 1915, Sec. 32,
Govt. of India Act, 1935 Sec. 176 (1) and is also continued by Art. 300 (1) of the Constitution of
India.

Given this importance of tort law, and given the vast role that the State performs in modern
times, one would reasonably expect that the legal principles relating to an important area of tort
law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this
ideal is not at all achieved, in reality, in India. It is for this reason that we have considered it
necessary to consider the subject and to suggest certain reforms.

The law in India with respect to the liability of the State for the tortious acts of its servants has
become entangled with the nature and character of the role of the East India Company prior to
1858. It is therefore necessary to trace the course of development of the law on this subject, as
contained in article 300 of the Constitution.

Conclusion
In the beginning the constitutional machineries relating to governance worked more or less to
general satisfaction and provided the people with a fairly safe and secure life. However, as time
passed their inadequacies have become marked and Government has lost its elegance as it has
failed to live up to the expectations of the Constitution to give real stuff to the policies designed
to promote social well being.

The increase in administrative functions has created a vast new complex of relations between the
administration and the citizen. The modern administration impinges more and more on
individual; it has assumed tremendous capacity to affect the rights and liberties of the people.
There is not a moment of a person’s existence when he is not in contact with the administration
in one way or other. This circumstance has posed certain basic and critical questions for
administrative lawyers. Does arming the administration with more and more powers keep in
view the interest of the individual? Are adequate precautions being taken to ensure that the
administration does not misuse or abuse its powers? Do the administrative agencies follow in
discharging their functions such procedures as are reasonable, consistent with the rule of law,
democratic values and natural justice? Has adequate control mechanism been developed so as to
ensure that the administrative powers are kept within the bounds of law, and after balancing the
individual’s interest against the needs of social control? It has increasingly become important to
control the administration, consistent with efficiency, in such a way that it does not interfere with
impunity with the rights of the individual.

There is an age old conflict between individual liberty and government. There thus arises need
for constantly adjusting the relationship between the government and the governed so that a
proper balance may be evolved between the private interest and the public interest. It is the
demand of prudence that when sweeping powers are conferred on administrative organs,
effective control-mechanism be also evolved so as to ensure that the officers do not use their
powers in an undue manner or for an unwarranted purpose. In securing the balance between
public power and personal rights, it is necessary to have efficient administration. In an
administrative law case, the private party is confronted by an agency of government endowed by
all the power, prestige and resources enjoyed by the possessor of sovereignty. In reality
administrative powers are exercised by thousands of officials and affect millions of people.
Maladministration results in weakening the government.

It would be apparent from the Nagendra Rao and other case law on the subject, that definiteness
of the precise contours and certainty of principles of universal application are lacking. While
holding that the distinction between sovereign powers and non-sovereign powers has become
academic in the present day Welfare State, the court in Nagendra Rao again affirms and accepts
the theory of “primary and inalienable functions”.

Suggestion
I am of the opinion that the creation of an administrative Division of the High Courts to which
the various administrative jurisdictions would be transferred to avoid time-consuming conflicts
of jurisdiction for the purpose of deciding ancillary matters arising in the course of
administrative appeals.

In France, there is highly developed centralized administration hence it would be in appropriate

to establish in India, an institution similar to Conseil d’Etat. In India the administrative law has
not been developed to that extent. However, the administrative law taking shape in India,
therefore it will be necessary to develop administrative courts on the lines of France an d in that
event the establishment of a Council of State on the lines of the French Counsel of Etat woud be
necessary because that will serve as counterpoise to the arbitrary action of the administrators.

The creation of a separate hierarchy of administrative courts brings about a clear division
between the spheres of civil and administrative law. There are separate law reports in both
branches of law. In this context, it is desirable that India should develop a well ordered system of
administrative law which may be able to absorb the new relations of public law into this legal
system.