This article has been written by Mr Vedant Singh Pal, a student studying BBA LL.B.(Hons.) From ICFAI Law School, The ICFAI University, Dehradun. The author is a 2nd-year law student.
INTRODUCTION
India is a country that has accepted the notion of a Welfare State. It means the country has accepted the liability towards securing the public weal and serving the interest of all citizens. Still, numerous frequentness passed when the State had fallen short in discharging its arrears towards satisfying the requirements of victims and compensating them. When frequentness of violation of the legal rights of an individual occurs and for which no immediate relief is handed the Law of Torts comes to help.
No cultivated system can permit a superintendent to work arbitrarily and claim that is entitled to act in any manner as if he’s autonomous. The conception of public interest has changed with structural change in society. No legal or political system moment can place the State above the law as it’s unjust and illegal for a citizen to be deprived of his rights or liberties immorally or by careless acts of officers of the State without any remedy. The State is a juristic person, proffered in the nineteenth century as a sound sociological base for State impunity. The circle has gone round and the emphasis now is the abecedarian principle of liberty, equivalency, fraternity and the rule of law, independence of the bar and following the principles of natural justice.
The ultramodern social thinking of progressive societies and the judicial approach is to do down with archaic State protection and place the State or the Government at par with any other juristic legal reality. Any penetrable compartmentalization of the functions of the State as “ autonomous and non-sovereign ” or “ governmental and non-governmental” isn’t sound. It’s contrary to ultramodern jurisprudential thinking. The need for the State to have extraordinary powers cannot be misdoubted. But with the abstract 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, simply because it was done by an officer of the State; the duty of its officers and right of the citizens are needed to be confirmed so that the Rule of Law in a Welfare State isn’t shaken.
The state was established to meet the requirements of the individual and society, and hence it has to discharge duly scores anticipated 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 individualities, spread education and discharge other functions, political social and profitable for developing the personality of the existent.
Role of the State and Law of Tort
In any ultramodern society, relations 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. similar relations frequently raise legal problems, whose result requires an operation of colourful vittles 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 asked, the Law of Tort figures much more constantly, than any other branch of law. By description, “ 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, therefore, encompasses all wrongs for which a legal remedy is considered applicable.
Given this significance of tort law, and given the vast part that the State performs in ultramodern times, one would nicely anticipate that the legal principles relating to an important area of the Law of Torts, videlicet, the liability of the State in tort, would be fluently ascertainable. still, at present, this ideal isn’t at each achieved, & in reality, in India. It’s for this reason that the experimenter set up 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 station continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of impunity for autonomous acts or acts of State, which must fail. ”
Tortious liability- an Indian scenario
The Law of torts as administered in India in ultramodern times is the English law as set up suitable to Indian conditions and as modified by the Acts of the Indian Legislature. The word ‘ tort ’ is deduced from the Latin term torture- to twist and implies conduct which is twisted or sinuous. It now means a breach of some duty independent of a contract giving rise to a civil cause of action for which compensation is recoverable.
To constitute tort there must be an unlawful act. The word ‘ act ’ in this environment is used in a wide sense to include both positive and negative acts, i.e. acts and deletions. unlawful acts which make a person liable in tort are positive acts and occasionally deletions. An elision includes not only failure to do a commodity in doing an act but also a bad way of performing the act. The law doesn’t put the liability for bare deletions. An elision incurs liability when there’s a duty to act.
Tortious liability of the State and its different phases
Tort law has been regularly concerned with the problem of determining civil responsibility for injury. The wide station which associated injury with bad luck or scarcities in character has been gradationally replaced by one which presumes that the utmost injured persons are entitled to compensation, through the legal system or some other medium. This metamorphosis is the prevailing morality of injury in America and 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 compare their ideal generalizations of the field. But the subject matter of tort law has proved sufficiently unformed to repel that shaping, so that a fresh force of material has always been for new generations of scholars and judges, and the relationship between changing ideas and changing legal doctrines has occasionally been obscured.
Different comprehensive norms of liability in tort( negligence, strict liability) have been formulated at different times. contending central purposes for tort law( admonishing censurable conduct or compensating injured persons) have been articulated. The dimension of tort law’s content has been expanded theoretically( to include” traditional” areas of the Law of Deals) and contracted( to count areas supplanted by indigenous Law). Tort law has been allowed as basically a private law subject or as a” 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 heist-bag collection of different judgments by individual courts.
CONCLUSION
In the beginning, the indigenous ministries relating to governance worked more or less to general satisfaction and handed the people a fairly safe and secure life. still, as time passed their crunches have come pronounced and Government has lost its fineness as it has failed to live up to the prospects of the Constitution to give real stuff to the programs designed to promote social well-being.
The increase in executive functions has created a vast new complex of relations between the administration and the citizen. The ultramodern administration impinges more and more on the individual; it has assumed tremendous capacity to affect the rights and liberties of the people. There isn’t a moment of a person’s actuality when he’s not in contact with the administration in one way or another. This circumstance has posed certain introductory and critical questions for executive attorneys. Does arming the administration with further and further powers keep in view the interest of the existent? Are acceptable preventives being taken to insure that the administration doesn’t misuse or abuse its powers? Do the executive agencies follow in discharging their functions similar procedures as are reasonable, and harmonious with the rule of law, popular values and natural justice? Has an acceptable control medium been developed to insure that the executive powers are kept within the bounds of the law, and after balancing the existent’s interest against the requirements of social control? It has decreasingly come important to control the administration, harmonious with effectiveness, in such a way that it doesn’t intrude with immunity with the rights of the existent.
There’s an age-old conflict between individual liberty and government. There, therefore, arises the need for constantly confirming the relationship between the government and the governed so that a proper balance may be evolved between the private interest and the public interest. Prudence demands that when sweeping powers are conferred on executive organs, an effective control medium is also evolved to insure that the officers don’t use their powers in an overdue manner or for an unwarranted purpose. In securing the balance between public power and particular rights, it’s necessary to have effective administration. In an executive law case, the private party is brazened by an agency of government endowed by all the power, prestige and coffers enjoyed by the proprietor of sovereignty. In reality, executive powers are exercised by thousands of officers and affect millions of people. Maladministration results in weakening the government.
It would be apparent from Nagendra Rao and other case law on the subject, that the definiteness of the precise silhouettes and certainty of principles of universal operation is lacking. While holding that the distinction between autonomous powers and non-sovereign powers has come academic in the present-day Welfare State, the court in Nagendra Rao again affirms and accepts the proposition of “ primary and inalienable functions ”.
Reference:
- By Salmond
- Air 2000 sc 2083
- Rudul shah v state of Bihar, air 1983 sc 1086, Sebastian m hungry 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
- Commissioner of Police, Delhi, air 1990 sc 513
- Kasturi Lal v state of Uttar Pradesh,(1965) 1 SCR 375
- National Commission to review the working of the constitution, a consultation paper* on the liability of the state in tort, this consultation paper on “liability of the state in tort” is based on a paper prepared by shri p.m. Bakshi, former member, law commission of India, New Delhi, for the commission
- Hwr wade and c f forsyth, ‘administrative law’ (2003)
- Principles of administrative law, m p jain & s n jain, 4th ed. 2003
- Griffith & street, principles of administrative law 2 (1973) cf principles of administrative law, m p jain & s n jain, 4th ed. 2003
- N. Nagendra Rao vs. State of a.p., air 1994 sc 2663
- National Commission to review the working of the constitution, a consultation paper on the liability of the state in tort
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