Lawyer Product Liability

Role of Welfare State in Discharging Its Liability-

Role of Welfare State in Discharging Its Liability- An Indian Perspective

 

MAHENDRA SUBHASH KHAIRNAR

Asst. Prof., Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad.

 

 ”The State is the product of human consciousness. Human consciousness postulates liberty, liberty involves rights and rights demand the state.”

-Thomas Hill Green

India is a country which has accepted the notion of Welfare State. It means the country has accepted the liability towards securing the public welfare and to sub-serve the interest of all citizens. However incidences were happen where the state has fall 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 happens and for which no immediate relief is provided the law of tort comes to help.

LIABILITY OF THE STATE IN TORT

Obligation of state

No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner, as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be deprived of his rights or liberties illegally by negligent act of officers of the State without any remedy. The State is a juristic person, propounded in nineteenth century as sound sociological basis for State immunity, the circle has gone round and the emphasis now is more on liberty, equality and the rule of law.

The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for the sake of society and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken. Thus in N. Nagendra Rao v State of AP (AIR 1994 SC 2663) the Apex Court held “In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist.

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 tort law-Indian scenario

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 tort law 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.

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 cases of Rudul Shah[1], 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 (Kasturilal v State of Uttar Pradesh,(1965) 1 SCR 375 )  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 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.

Liability for Breach of Human Rights

The Human Rights Act, makes comprehensive provision for remedies, in particular against public authorities. In the first place, it provides that  a person who claims that a public authority has acted or proposes to act in a way which is incompatible with a Convention / international rights may bring proceedings against the authority in the appropriate court or tribunal, but only if he is, or would be , a victim of the unlawful act.  Secondly, in relation to any unlawful act or proposed act of a public authority the court ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

The Act provides, however, that damages for a judicial act (since court s and tribunal count as public authorities), if done in good faith, may not be awarded except as specifically provided in the case of unlawful arrest or detention nor may a judicial act be challenged otherwise than by way of appeal or judicial review or under ministerial rules. But many violations also were committed by ministerial acts or orders, police and prison authorities, immigration officials and others. The liability of the state to pay compensation for the deprivation of the fundamental right of life and personal liberty (or any other fundamental right for that matter) is a new liability in public law created by the constitution and not vicarious liability or a liability in tort. For this reason, this new liability is not hedged in by the limitations, including the doctrine of sovereign immunity, which ordinarily apply to state’s liability in tort. This view is strongly supported by the decision of the Privy Council in Maharaj v Attorney-General of Trinidad and Tobago(No.1) (1978) 2 All ER 670 (PC), HWR Wade and C F Forsyth, ‘Administrative Law’ (2003).

 

LIABILITY IN TORT GENERALLY

General principles-

Public authorities, including ministers of the crown Matthews v United Kingdom (199) EHRLR 1, enjoy no dispensation from the ordinary law of tort and contract, except in so far as statute gives it to them. Unless acting within their powers, they are liable like any other person for trespass, nuisance, and negligence and so forth. This is an important aspect of the rule of law. Similarly they are subject to the ordinary law of master and servant, by which the employer is liable for torts committed by the employee in the course of his employment, the employee also being personally liable.

There are some situations where an officer of central or local government has an independent statutory liability by virtue of his office, because the statute imposes duties upon him as a designated officer rather than on the public authority which appoints him. In that case the employee only will be liable. Thus an action failed against a local authority when their inspector of animals had seized supposedly infected sheep in a market, since the statutory order empowered the inspector but not the local authority to seize infected animals, and it made no difference that the local authority had a statutory duty to appoint the inspector and power to dismiss him (Stanbury v Exeter Cpn. (1905) 2 KB 838). But if the duties of the designated officer are in fact carried out by employees of the local authority, that authority may be liable in the same way as for its other employees. This last proposition was applied by the Court of Appeal where a junior employee of a local authority negligently certified that no local land charges were registered against land which was being sold, so that an encumbrance lost a charge over the land, although the statutory duty issuing certificates rested specifically upon the local authority’s clerk as register (Ministry of Housing and Local Govt. v Sharp (1970) 2 QB 223). In cases where the designated officer alone is liable, his employer (Whether the Crown or a Local authority or a State) will normally indemnify him, but this is only a matter of grace.

Another rule which emerged in the course of Wilkes’s legal adventures was that oppressive or unconstitutional action by servants of the government could justify an award of exemplary or punitive damages i.e. damages which take in to account the outrageous conduct of the defendant and not merely the actual loss to the plaintiff.

Rights over the property are similarly overridden where a public authority acquires land which is subject to some third party right such as a right of way or a restrictive covenant. No such right can prevent the authority from exercising its statutory powers(Kirby v Harrogate School Board (1896) 1 Ch. 437) and to the extent that the right is expropriated a statutory claim to compensation. But the right is not extinguished, and may be enforced in any situation where it does not conflict with action based on statutory authority.

If there is a choice of sites or methods, some of which will injure private rights and some of which will not, a public authority may have a duty to choose the latter. In each case the court has to consider whether Parliament presumably intended to permit the infringement. The presumption is that infringement to be avoided unless reasonably necessary and the onus of proving necessity is on the public authority.

 

Significance of the Present Study

Justice: the end and the means

• Scholars of political science and legal theory tell us, that the administration of justice is one of the primary objects for which society was formed. Our Constitution, in its very preamble, speaks of justice as one of the great values which its makers have cherished. Edmund Burke said, “that justice is itself the “great standing policy of civil society”.
• Aristotle said that the law is a pledge, that the citizens of a State will do justice to one another. Our Constitution goes much beyond that. It takes a pledge, that justice shall inform all institutions of the national life.

Unsatisfactory state of the law

• The law that contains the principles that will govern the liability of the State, for torts committed by its agencies, should be just in its substance, reasonably certain in its form and fairly predictable in its working.
• It is found that the law on the present subject-matter of this paper fails to satisfy these criteria. It is found to be suffering from conflicting views, owing to the loose and imprecise criteria that have come to be adopted. It deserves a close second look in the present century, in the larger interests of society.
• Existing liability on the state can be broadly categorized in to vicarious liability, tortuous liability and contractual liability. However the meaning and scope of tortuous liability of state is depends upon judicial discretion which needs to be fixed and mandatory so as to make the state more publicly accountable, it will be possible through enactment and making such provisions holding the state liable for circumstances injuring the legal rights of people, of its citizens. Provisions of statute will give the right-the power of enforceability, certainty. Hence this paper will highlight the necessity and inevitability of framing such laws in line with the Civil Liability for Nuclear Damage Bill holding the state liable for any nuclear damage. Then why state should not undertake the civil liability for other kinds of damage?, Causing the violation of human rights and legal rights. Why state hesitate to recognize the circumstances as violative to legal rights of an individual? 
• Even though more than 60 years have elapsed since the commencement of the Constitution, no law has so far been made by Parliament as contemplated by article 300, notwithstanding the fact that the legal position emerging from the article has given rise to a good amount of confusion. Even the judgments of the Supreme Court have not been uniform and have not helped to remove the confusion on the subject, as would be evident from what is stated hereinafter.

 

 

 

[1] Rudul Shah v State of Bihar, AIR 1983 SC 1086, Sebastian M Hongray v Union of India, AIR 1984 SC 1026, Bhim singh v State of J& K , AIR 1986 SC 494 and SAHELI a Women’s Resource Centre v Commissioner of Police, Delhi, AIR 1990 SC 513

About the Author

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