In each and every country, the government has specific roles to play with the main aim of achieving public welfare and performance of these roles includes major roles to be played by different agents of the government which in most of the cases fall within the ambit of the master-servant relationship. This result is the creation of innumerable master-servant relationships of the government with its employees.
An analysis of this relationship in context with the laws of India will prove that there exists an ultimate liability on government for the acts committed by these employees and in addition to other defences, one very important defence for the government of India in such cases is the defence of sovereign immunity which draws its interpretation from the British time and is invoked in cases even today.
In very recent times also, the government tries to evade responsibility by invoking the doctrine of sovereign immunity. For the purpose of raising defence, sovereign immunity is a very important concept and should have the legal effect but there are several issues associated with the invoking of this defence. The major problem lies in the interpretation of this concept and the reason behind that is a lack of clear statutory interpretation.
Research Methodology: –
Aims and Objectives: –
The main aim of this research is to look into the liability of the government in cases of negligent acts committed by its employees and to specifically focus on the situations in which the government tries to evade its responsibility. The researcher further aims to analyze the current position of the law in these situations and its applicability in cases.
Scope of the research: –
The researcher has looked into the definition of the area of law dealt with firstly in the relevant acts and statutes. After this, to have a look into the practical application of the statute various different cases have been studied. The cases which have held opposite views on the liability of government have been specifically looked into and contrasted in the paper. Lastly, Law Commission reports and journals have also been studied.
Research pattern: –
Firstly, the paper reflects the statutory position of law. After that, analysis on the basis of different cases have been carried on, later on, there is specific analysis in the case of Ram Ghulam v. the State of U.P. to look into the contractual liability of the government which all is then followed up by a short conclusion.
Statutory interpretation of the doctrine: –
Looking at the statutory definition related to the concept of sovereign immunity in India, Article 300 of the Constitution of India is of utmost importance which states-“Suits and proceedings”
(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution
- Any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
- any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings”
Now, the phrase in this article ‘if this Constitution had not been enacted’ takes us back to some older provisions before the enactment of the Constitution. The most relevant provision on which Article 300 is based in Section 176 of the Government of India Act, 1935 which in turn is based on Section 32 of the Government of India Act, 1915 and this further is derived from Section 65 of the Government of India Act, 1858 which states that “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.”Interpreting the liability of government from the wordings of this Section, we can infer that the government would be liable for those acts of its servants for which the East India Company was liable before the year 1858.
This statutory interpretation in this area only reflects how vague is it to draw the liability of government in the modern 21st Century from the archaic 19th Century facts and circumstances. It is the result of this legislation only that judgments on this issue derive their legitimacy from the early cases relating to the circumstances in 19th or even 18th Century. This all makes this area very perplexing and most of the judgments on this issue are also very contradictory.
Case-based analysis: –
A very early judgment on this issue was delivered by Sir Barnes Peacock C. J. in the case of Peninsular and Oriental Steam Navigation Company case (P & O case). In this case, the court drew an elaborate distinction between the sovereign and non-sovereign functions of the state and clearly laid down the principle that a state can only be held responsible for its sovereign functions. Now, this judgment was delivered back in the year 1861 and at that time the East India Company was playing a dual role in the country, one role was in continuance of its primary function which was that of a trading corporation and the other role was that of an administrator or a sovereign authority ruling the company.
Now, focusing primarily on this principle laid down in the P & O case the court in the case of Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh negated the liability on the part of government without giving due consideration to the change in circumstances. This is a landmark case and has been widely used for ascertaining the claim against the state in the cases of tortious wrongs committed by the employees of the state, in this case the gold of the appellant was taken into the custody by the police and was thereby negligently kept by them in the Malkhana and was eventually lost.
Arising from these facts and circumstances, two substantial questions were laid before the court which was that whether police officers were negligent and if yes then was the respondent which is the state, in this case, is liable to compensate. After consideration of entire facts related to the keeping of the gold in Malkhana and giving due consideration to the procedures laid down in the Code of Criminal Procedure and the U.P. Police regulations, it was clearly established that the police was negligent in keeping the articles in its custody. Coming to the liability of the state, the major case on which reliance was placed to decide the issue at hand as already mentioned above wasP & O case and drawing from that dual nature scenario, the court held that here in this case the government was not performing any sovereign function and therefore should not be held liable.
The court while deciding this case didn’t refer to a very important judgment of Rajasthan High Court which was State of Rajasthan Vs. Vidya was. This judgment could have served as a very good precedent for the simple fact that the court, in this case, has in a very proper manner recognized the change in circumstances and has not merely derived from the statute that only if the East India Company would have been liable, the then-current government would be liable. Instead, the court appreciated the fact that this principle is orthodox and has its own colonial origins, it completely set off the basic doctrine that ‘a king can do no wrong’ and looked at the roles and responsibilities that government had in context of the time and held the government liable for the negligent act of its servants. The reason why the court said this judgment can’t be taken into account was that there is a change in the factual matrix but didn’t appreciate that purpose and grounds of liability were the same.
There are other issues also which were neglected by judges in the Kasturi Lal Case. There was a statement by Sir Peacock C. J. which was cited in the Advani Case of Bombay High Court and the statement was that “the general principles applicable to sovereign and State, and the reasoning deduced from the maxim ‘the king can do no wrong’, would have no force in determining the question whether East India Company would be liable in tort”.Moreover, the real question in the P & O case was mainly focused on determining the liability in the case of business activities which were conducted by the East India Company and judging on sovereign authority was not the major issue.
Analysis of Doctrine of Sovereign immunity vis-à-vis Ram GulamAndAnr. vs Government ofU.P: –
The case of Ram Gulam and Anr. vs Government of U.P. is a 1949 judgment which focuses on assessing the liability of the government in the case of negligence committed by its servants in a contractual relationship. In this case, the ornaments of the plaintiff were stolen from his house and thereafter they were recovered from someone’s else’s house and following the procedures laid down in the Code of Criminal Procedure, the ornaments were kept in the Malkhana by the police but due to the negligent attitude of the police officials, the ornaments were again stolen from the Malkhana and hence this suit was brought up by the plaintiff against the government and he demanded the ornaments back or else the equivalent financial compensation.
Broadly two issues were brought up in the front of the court,
The first issue was that government should be held liable on the account of its position as a Bailee (the plaintiff is the bailor and the government being the Bailee) and the other issue was that government should be held liable because there was a master-servant relationship (between the government and the police officials). The first issue was rejected by the court on the face of it. The judge Seth said “The first ground is manifestly untenable and does not deserve any serious consideration, for the obligation of a bailee is the contractual obligation and springs only from the contract of bailment. It cannot arise independently of a contract.
In the second issue, the ornaments were not made over to the Government under any contract whatsoever; in fact, the ornaments were not at all handed over by the plaintiffs to the Government. The Government, therefore, never occupied the position of a bailee and is not liable as such to indemnify the plaintiffs.” Now, there are many flaws with this position taken by the court in regards to the first issue. First and foremost, mentioning that a contract never existed at all is a completely flawed position taken by the court, a contract for bailment can always exist independently. The court has altogether not taken into consideration the concept of constructive bailment.
This whole concept of constructive Bailment in enumerated in the definition of Bailment itself, it was because of this reason only that Thirteenth Report of the Law Commission of India, 1958 stressed on introducing the elements of constructive bailment. It led down guidelines especially in Paragraph 120 about how the bailment should be construed in a relationship where a person would be liable as a Bailee even when there is no mutual consent for the contract of bailment. The conditions it mainly talked about for the contract of the bailment to arise were that one person finds a good or where he lawfully has to keep the goods in order to achieve justice etc.
In addition to this, there are several case laws also which highlight the position on constructive bailment. In a very well cited case of the Pioneer Container KH Enterprise v. Pioneer Container, the court came down to the conclusion that even when a party is not privy to a contract still a contract of bailment can arise. Although the facts were not very close to the case of Ram Ghulam the way the court derived the position of law, in this case, was important.
It was actually a contract of sub-bailment and the dispute was over the issue of jurisdiction in the case and the court led a party bound to the original terms over the jurisdiction even when it didn’t explicitly agree to those terms and hence the consent was taken to be implied in this case. In another case of Trustees of the Port of Bombay v. Premier Automobiles Ltd. the bailment was said to be constituted on the sole account of possession even if the consent was not involved. In addition to this, Section 61B of the Bombay Port Trust Act was also cited just to throw some restrictions on this relationship.
Over 78 years have been passed since our constitution was enacted but still, this area of law reflecting such an important duty and obligation of the government is still not clear, the judges are still confused over proper applicable authority in such cases even after various judgment on this issue. It has been suggested in various journals and reports of law commissions that the whole confusion over this issue evolves a need for detailed research and eventually passing of an amendment which would leave no scope for confusion.
This paper also through different cases has proved that for proper use of the defence of sovereign immunity, a clear statutory definition is required in long run and for the interim period guidelines through the highest appellate authority should be given immediately so that the ends of justice are achieved.
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