Laxmikanth Summary: Rights And Liabilities of the Government | Indian Polity for UPSC CSE PDF Download

Introduction

Articles 294 to 300 in Part XII of the Constitution deal with the property, contracts, rights, liabilities, obligations and suits of the Union and the states. In this regard, the Constitution makes the Union or the states as juristic (legal) persons.

Preface to the Indian Constitution

Property Of The Union And The States

• when the government acquires the property of a minority educational institution; and 
• when the government acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits. 

5. Acquisition under Executive Power: The Union or a state can acquire, hold and dispose property under the exercise of its executive power. Further, the executive power of the Union or a state extends to the carrying on any trade or business within and in other states also.

Suits By Or Against The Government

1. Article 300 of the Indian Constitution: Governs lawsuits involving the Government.

2. Naming in Lawsuits: Permits suing or being sued under the Union of India for the Government and respective state names for state governments.

3. Legal Entities: Recognizes the Union of India and state governments as distinct legal entities for legal proceedings.

4. Liability Scope: Covers matters concerning the Union of India and states, similar to practices before the Constitution.

5. Subject to Legislation: Changes in liability are subject to laws enacted by Parliament or state legislatures, currently nonexistent.

6. Pre-Constitution Liability: Government was suable for contracts but not for torts related to sovereign functions before 1950. This differentiation is explained further in the next section.

Liability for Contracts: 

• The executive power of the Union or a state allows them to engage in contracts for property, trade, or other purposes.

• The Constitution sets three mandatory conditions for these contracts:

  • They must be explicitly made by the president or governor.
  • Execution should occur on behalf of the president or governor.
  • The president or governor's directives or authorizations regarding the involved person or execution method must be followed.

• Failure to meet these conditions renders contracts null and unenforceable in courts.

• The president or governor, along with the officer executing the contract, isn't personally liable for these contracts.

• However, this immunity doesn't shield the government from contractual responsibility, enabling individuals to sue the government in contract matters.

• The liability of the Union and state governments in contracts mirrors that of individuals under regular contract laws, a tradition in India since the era of the East India Company.

 Liability for Torts: 

• The East India Company began as a trading entity but evolved into a governing authority in India over time.

• It had accountability in trade-related matters but enjoyed immunity from legal liability for its sovereign functions, aligning with the English Common Law principle that the 'King can do no wrong'.

• While Britain abolished this immunity through the Crown Proceedings Act in 1947, India retained this distinction.

• In India, the government (Union and states) can be sued only for civil wrongs committed by officials in their non-sovereign roles, not in sovereign functions like dispensing justice or war-related actions.

• This distinction was established in the P and O Steam Navigation Company case (1861) and upheld post-independence in the Kasturilal case (1964). However, subsequent rulings started interpreting sovereign functions restrictively and awarded compensation in several cases.

• In Nagendra Rao case (1994), the Supreme Court criticized sovereign immunity, stating that the State couldn't evade compensation for damages caused by its negligent servants, regardless of sovereign functions. It established the principle that apart from a limited number of functions, the State cannot assert immunity. The observations made in this instance are as follows: 

  • No civilized system should permit the government to act without accountability or deprive citizens of their rights unlawfully. The idea of public interest has evolved, and it's unfair for citizens to suffer due to the State's negligence without any recourse.

  • Progressive societies and legal perspectives aim to remove outdated State protections, treating the State like any other legal entity. Categorizing State functions as solely sovereign or non-sovereign doesn't align with modern legal thinking.

  • Balancing the State's needs, officials' duties, and citizens' rights is crucial for upholding the rule of law in a welfare State. The State's role extends beyond defense and justice to regulating various spheres of life.

  • The clear line between sovereign and non-sovereign powers has largely blurred. Except for essential functions like justice, maintaining law and order, and tackling crime, a constitutional government cannot claim immunity.

• Later cases like the Common Cause case (1999) and the Prisoner's Murder case (2000) rejected sovereign immunity, asserting the State's liability for tortuous acts regardless of sovereign or non-sovereign powers.

• These rulings significantly diminished the binding value of earlier judgments, signifying a shift in the legal landscape concerning the State's liability for its actions.

Suits against Public Officials

1. President and Governor: The Constitution confers certain immunities to the president of India and governor of states with regard to their official acts and personal acts.

• Official Acts:The president and governors are immune from lawsuits for actions performed in their official capacity, both during and after their term. However, the president's conduct can be reviewed by authorized bodies, and grievances against them can lead to legal action against the Union of India or the respective state.
• Personal Acts: During their term, the president and governors cannot face criminal proceedings for personal actions or be arrested or imprisoned. This immunity applies only during their tenure. Civil proceedings can be initiated against them during their term with a two-month prior notice for personal actions.

2. Ministers: Ministers lack official immunity under the Constitution for their actions. They aren't required to endorse the official acts of the president or governors, thus avoiding legal liability for those actions. Additionally, they're shielded from accountability for advice-given actions. However, ministers can be legally pursued for personal matters, facing both criminal and civil lawsuits in regular courts, similar to any ordinary citizen. 

3. Judicial Officers: The judicial officers enjoy immunity from any liability in respect of their official acts and hence, cannot be sued. The Judicial Officers Protection Act (1850) lays down that, ‘no judge, magistrate, justice of peace, collector or other person acting judicially shall be liable to be sued in any civil court for any act done by him in the discharge of his official duty’.

4. Civil Servants: Under the Constitution, the civil servants are conferred personal immunity from legal liability for official contracts. This means that the civil servant who made a contract in his official capacity is not personally liable in respect of that contract but it is the government (Central or state) that is liable for the contract.