Answer:- In many cases Defence of State immunity is not available where fundamental rights are violated. The decisions of the Supreme Court in the area of personal liberty have further attenuated the sphere of sovereign immunity. The wrongdoer is accountable and the State is responsible if the person in custody of police is deprived of his life and personal liberty guaranteed by Article 21 of the Constitution without procedure established by law the Supreme Court and the High Courts have granted exemplary damages under their writ jurisdiction in cases where there is violation of life and personal liberty of citizens guaranteed by article 21 of the Constitution.
In Sebastian M. Hongray v. Union of India, two person were taken into custody by army authorities in Manipur but they were not produced before the court in obedience to a writ of habeas corpus and it was presumed they must have met with unnatural death while in Army custody. The Supreme Court directed the Union Government to pay exemplary damages of Rs. 1 lakhs each to the wives of those person.
In Bhim Singh v. State of J and K., the court awarde a sum of Rs. 50,000 to the petitioner. as compensation for the violation of his constitutional right of personal liberty under Article 21 of the Constitution. The petitioner who was an MLA was illegally arrested and detained in police custody and deliberately prevented from attending the session of the Legislative Assembly.
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In People’s Union for Democratic Rights v. Commissioners, Delhi Headquarters a labour was taken to the police station for doing some work. He was severely beaten when he demanded wages and succumbed to the injuries. The Supreme. Court directed the Government to pay Rs. 75,000 as compensation to the family of the deceased.
In Rudal Shah v. State of Bihar, in a habeas corpus petition under Article 32 of the Constitution the Court ordered release of the petitioner from illegal detention in jail even after his acquittal he had to remain in jail for 14 years because of the irresponsible behaviour of the State and its officers. The Supreme Court directed the Bihar Government to pay him compensation of Rs. 30,000 as an interim measure, without prejudice to right to file a civil suit for further damages under general law. He was acquitted by the sessions court on June 30, 1968 but was released from jail only on Oct. 16, 1982 when the Supreme Court intervened.
In Nilabati Behra v. State of Orissa, the petitioner’s son, aged 22 years was arrested by police at 8 A.M. on December 1, 1989 in connection with investigation of an offence of theft in a village. He was handcuffed tied and kept in police station. On the nest day his body was found by the side of the railway track. The mother of the deceased sent a letter to the Supreme Court alleging custodial death of her son claiming compensation on the ground of violation of Article 21. The Court treated this letter as a writ petition under Article 32 and awarded Rs. 1.5 lakhs as compensation to the mother of the deceased. The Court observed “award of compensation in proceedings under Articles 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is the distinction between the two remedies.” Verma J. further said, ‘It is sufficient to say that the decision of this Court in Kasturial upholding the State’s plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the constitution which enables award of compensation for contravention of fundamental rights when the only practicable mode of enforcement of the fundamental rights can be the award of compensation.” The defence of sovereign immunity will not be available to the State in cases where there is violation of fundamental right to life and personal liberty of a person.
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In subsequent cases the Supreme Court of has further moved away from the traditional doctrine of sovereign immunity. For example, in Lucknow Development Authority v. M.K. Gupta, the Supreme Court held the Lucknow Development Authority liable for rendering deficient housing services to consumers. It was held that if loss or injury is caused to a citizen by the arbitrary actions of the State employees the State is liable to pay compensation to him. The Court held that under our Constitution sovereignty is vested in the people. Every limb of the constitutional machinery is obliged to be people oriented. Public authorities who are entrusted with statutory function cannot act negligently. In this case the respondent had applied for allotment of a flat constructed by L.D.A. and deposited the entire money, but the possession of the flat was not given to him because the construction was not complete. He filed a complaint in the Consumer Court which directed the L.D.A. to hand-over possession of the flat after completing the constructiion work and if it was not possible refunded the cost of construction. Instead of complying the Court’s order, the L.D.A. filed an appeal in the National Commission. The National Commission held that the action of the appellant amounted to harassment, mental torture and agony of the respondent and therefore directed the appellants to pay Rs. 10,000 as compensation. The Supreme Court upheld the decision of National Commission.
In R. Gandhi v. Union of India, in a public interest petition under Article 226 of the Constitution the Madras Hich Court held that damages for injury to property of citizens in riot due to total breakdown of law and order can be claimed against the State Government. The Court allowed Rs. 33.39 lakhs as compensation against the State to 39 Sikh families on the ground that the government had failed to protect the properties of these families in the riots let loose in Coimbatore in the wake of the former Prime Minister Indira Gandhi’s assassination in October 31, 1984 as the deprivation of property resulted in deprivation of means of livelihood in violating Articles 21 and 300-A of the Constitution.
It is to be noted that in the above cases the deprivation of life or property was not directly by the State or its officers but by third parties whose acts were facilitated because of the negligence or inaction of the officers of the State.
In Smt. Kalawati v. State Himachal Pradesh, the Court allowed compensation to be paid to the dependents of two persons who died during surgical operation in a government hospital due to negligence of the hospital staff as they were administered, nitrous oxide in place of Oxygen. Since the hospital staff were employees of the State the Court rightly treated it to be as a case of deprivation of life violating the fundamental right under Article 21 of the Constitution and not purely a case of negligence.
In State of Gujarat v. Govindbhai Jakhubhai, the plaintiff had gone to the police station in connection with detention of his truck. During the conversation, the police constable on duty got irritated and shot the plaintiff by his gun resulting in amputation of his right leg. The Gujarat High Court held that the said act of the constable amounted to violation of plaintiff’s right to life and therefore, the State Government was vicariously liable to pay compensation. The doctrine of sovereign immunity is subject to the constitutional mandate of deprivation of fundamental right to life and personal liberty.
But in State of Assam v. Md. Nizamuddin Ahmad, where the seeds from the shop of the plaintiff was seized by the police on the ground that the plaintiff was carrying on the business without proper licence and were damaged because of the negligence, carelessness and vindictive behaviour of the police as there was no storage facility on the police station, it was held that the seizure of goods were in exercise of sovereign power and, therefore, the plaintiff was not entitled to any damages.
Thus it is clear that socio-economic and welfare activities undertaken by a modern State are not sovereign functions in the traditional sense. Although carrying on of war is traditional sovereign function in the traditional sense. Although carrying on of war is traditional sovereign function, but it does not mean that in all cases when a tort is committed by a member of the defence sevices in the course of employment of the State the defence of sovereign immunity can be available. This is illustrated by the case of Pushpa Thakur v. Union of India.
In Pushpa Thakur v. Union of India a military truck coming from the side of Delhi, due to negligence, went on the wrong side of the road and hit a culvert. The appellant and four other person who were sitting on the culvert sustained severe injuries. The truck was the part of the First Armed Division which had moved to Ferozepur during the 1971 Indo-Pak war. After the end of the war the Division was ordered to move back to its permanent position at Jhanshi. It was during this movement that accident occurred. At that time the truck was carrying rations and some soldiers. The High Court held that the accident took place during the exercise of the sovereign functions of the State and therefore the Union of India was not liable. The Supreme Court overruled the High Court decision and held that the Union of India was liable for compensation to appellant and the principle of sovereign immunity of the State had no application. The truck involved in the accident was engaged in carrying ration and soldiers within the country during peace time in the course of movement of troops after the hostilities were over and this is a routine duty not directly connected with carrying on of war, the traditional sovereign function.
In Nagendra Rao & Co. v. State of A.P., the Supreme Court has reiterated the view that the distinction between sovereign” and “non-sovereign” function of the state has almost been obliterated and should be abolished. In this case the Court has held that the State is accountable for lawlessness of its officials. The Court has held that in the modern context the doctrine of sovereign immunity stands diluted and the distinction between ‘sovereign’ and non-sovereign’ function of the State no longer exists. In this case the appellant was carrying on business in fertiliser and food grains under the licence issued by appropriate authorities. The police raided his premises and seized huge stock of fertilisers and foodgrains from his premises. The District Revenue Officer (DRO) in exercise of powers under Section 6-A of the Essential Commodities Act directed Assistant Agricultural Officer (AAO) to take the fertilizer for disposing it immediately and depositing the sale proceeds in the treasury. The AAO did not take any steps to dispose of the fertiliser. Ultimately, the proceeding under Section 6-A of the Act were terminated in his favour as no serious violation of any control order was found and he was not guilty of black-marketing or adulteration and the Collector ordered the release of the stock seized from him. But when the appellant went to take the dilivery of the stock he found that the stock had been spoilt both in quantity and quality. The appellant demanded value of the stock which was rejected by the State. He then filed the suit for compensation against the State. The State contended that it was immune from liability on the doctrine of sovereign immunity The trial court held the State liable and decreed the suit. The High Court set aside the decree relying on the ratio of Kasturi Lal’s case. The two-judge bench of the Supreme Court held that the State was liable for the negligence committed by its officers in discharge of public duty conferred on under a Statute. As regards, the immunity of State on the ground of sovereign function, the Court held that the traditional concept of sovereignty has undergone a considerable change in the modern times and the line of distinction between sovereign and non-sovereign powers no longer exists. The concept of public interest has changed with the structural change in society. The Court rightly pointed out that no legal or political system today can place the State above law, as it is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of officers without any remedy. Need of the State to have ordinary powers and the duty of its officials and the rights of the citizens were required to be reconciled so that the rule of law in a welfare State is not shaken. In a welfare State, the functions of the State are not only to defence of the country or is administration of justice of maintaining law ans order but it extends regulating and controlling the activities of the people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign power for which no rational basis survives has largely disappeared. Therefore, barring functions, such as, administration of justice, maintenance of law and order, and repression of crime etc. which are among primary and unalienable functions of constitutional government the State cannot claim any immunity.
In Railway Board v. Chandrima Das, The Supreme Court has held that where gang rape was committed by railway employees in the building of railway namely Yatri Niwas on a woman from Bangladesh the Central Government would be vicariously liable to pay compensation to the victim. It was not an act committed by railway employees in discharge of function delegated to them as referable to sovereign power of government. Running of Railways is a commercial activity. Establishing Yatri Niwas at various stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with exercise of sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including Railway Station and Yarti Niwas, are essential components of the government machinery which carries on the commercial activity.
On behalf of the appellants it was contended that the Central Government cannot be held vicariously liable for the offence of rape committed by the employees of the Railways. It was contended that the liability under the law of torts would arise only when an act complained of was performed in the course of official duty and since rape cannot be said to be an official act, the Central Government would not be liable even under the law of Torts. The Court rejected this argument as it was contrary to the law settled by the Apex Court on the question of vicarious liability in its various decisions. In State of Rajathan v. Mst. Vidyavati, it has been held that the government will be vicariously liable for the tortuous acts of its employees. These principles have been followed in various decisions. These principles have been reiterated in N. Nagendra Rao & Co. v. State of A.P., and again the State of Maharashtra v. Kanchan Mala Vijay Singh Shirka.
The Court also rejected the appellants argument that the theory of sovereign power as propounded in Kasturi Lal’s v. State of U.P., applies in this case and therefore the Government is not liable. The Court said, that this decision has not been followed in its subsequent decision. In Common Cause, a Regd. Society v. Union of India, the Court did not follow the decision in Kasturi Lal’s case where the Court observed that the efficacy of this decision as a binding precedent has been eroded. The Court said that the theory of sovereign power which was propounded in Kasturi Lal Case is no longer available in a welfare State. The function of the government in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice, but they extend to many other spheres as, for example, education, commercial, social, economic, political and even marital. These activities cannot be said to be related to sovereign power.
The above observation of the Court in this judgment has completely eroded the basis of the decision in Kasturi Lal’s case..
The Court said that sovereign function was never available where the State was involved in commercial and private function nor it is available where the officers are guilty of interfering with the life and liberty of a citizen not warranted by law, the doctrine of sovereign immunity has no relevance in the present day context when the concept of sovereignty has itself undergone drastic change. The old and archaic concept of sovereignty thus does not survive. Sovereignty, now vists in the people. Legislature, the executive and the judiciary have been created and constituted to serve the people.’ According to modern thinking, their Lordships said, the State is treated in performance of its functions like a private company. It is, therefore, liable for negligence of its officers. The Judges did not overrule Kasturilal’s decision as it was a decision of a Constitution Bench but they pointed out that it was not correctly decided. In view of a Constitution Bench but they pointed out that it was not correctly decided. In view of this uncertainty in this area.
The First Law Commission in 1956 had recommended the doing away of doctrine of sovereign immunity. It said, that “there is no convincing reason why the government should not place itself in the same position as a private employer subject to same rights and duties as are imposed by Statute.” A Bill entitled the “Government (Liability in Tort) Bill” was first introduced in Parliament in 1965, but could not be enacted into law. It was reintroduced in 1969, but the Bill has not been passed so far. It is a high time that Parliament should pass the law of governmental liability in line with other democratic countries.