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State Liability

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Anuradha Koneru
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29 views3 pages

State Liability

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Anuradha Koneru
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© © All Rights Reserved
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Dr KAR [SVD SIDDHARTHA LAW COLLEGE, VIJAYAWADA]

UNIT I: LIABILITY OF GOVERNMENT


- Liability of Government and Public Authorities in Torts and Contract;
- Promissory Estoppel
- Government Privileges in Legal Proceedings.

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Liability of Government and Public Authorities in Torts and Contract

 “Rex non potest peccare” is a Latin legal maxim meaning "the king can do no wrong" which
developed into the doctrine of sovereign immunity, also known as governmental immunity.
Rex non potest peccare originated in English common law and is based on the idea that the
king cannot commit a legal wrong.

 “Qui facit per alium facit per se”, which means "He who acts through another does the act
himself", is a fundamental legal maxim of the law of agency. It is a maxim often stated in
discussing the liability of employer for the act of employee in terms of vicarious liability.

 Salus populi suprema lex esto is a maxim or principle found in Cicero's De Legibus (book
III, part III, sub. VIII). (Latin: "The health, welfare, good, salvation, felicity of the people
should be the supreme law"; "Let the good or safety of the people be the supreme or highest
law"; or "The welfare of the people shall be the supreme law").

 Respondeat superior (Latin: "let the master answer"; plural: respondeant superiores) is a
doctrine that a party is responsible for (and has vicarious liability for) acts of their agents. For
example, in the United States, there are circumstances when an employer is liable for acts of
employees performed within the course of their employment. This rule is also called
the master-servant rule, recognized in both common law and civil law jurisdictions. In a
broader scope, respondeat superior is based upon the concept of vicarious liability.

Liability of Government - Contractual Liability

1
Dr KAR [SVD SIDDHARTHA LAW COLLEGE, VIJAYAWADA]

Introduction

In England, the government was never considered as an “honest man”. It is


fundamental to the rule of law that the Crown, like other public authorities, should
bear its fair share of legal liability and be answerable for wrongs done to its subjects.
The immense expansion of governmental activity from the latter part of the 19 th
century onwards made it intolerable for the government, in the name of the Crown,
to enjoy exemption from the ordinary law.

English law has always clung to the theory that the king is subject to law and,
accordingly, can commit breach thereof. As far as 700 years ago, Bracton1 had
observed, “ Rex non debet esse sub homine sed sub deo et sub lege, quia lex facit
regem” means “the King must not be under man but under God and under the law,
because the law makes the King.

Though theoretically there was no difficulty in holding the king liable for any illegal
act, there were practical problems. Rights depend upon remedies and there was no
human agency to enforce law against the king. All the courts in the country were his
courts and he could not be sued in his own courts without his consent. He could be
plaintiff but never be made defendant. No writ could be issued nor could any order
be enforced against him. As “the king can do no wrong”, whenever the
administration was badly conducted, it was not the king who was at fault but his
Ministers, who must have given him faulty advice. But after the Crown Proceedings
Act, 1947, the Crown can now be placed in the position of an ordinary litigant.

Contractual liability of the State – India

In Indian history the maxim “the King can do no wrong” has never been accepted.
Historically, either the King or the People should bound by “Principle of Dharma”.
In modern period also the Union and the States are legal persons and they can be
held liable for breach of contract and in tort. They can file suits and suits can be filed
against them.

1
Henry of Bracton (c. 1210 – c. 1268) was an English cleric (Priest) and jurist.
He is famous now for his writings on law, particularly De legibus et consuetudinibus Angliæ ("On the
Laws and Customs of England") and his ideas on mens rea (criminal intent). According to Bracton, it
was only through the examination of a combination of action and intention that the commission of a
criminal act could be established. He also wrote on kingship, arguing that a ruler should be called
king only if he obtained and exercised power in a lawful manner. In his writings, Bracton manages to
set out coherently the law of the royal courts through his use of categories drawn from Roman law,
thus incorporating into English law several developments of medieval Roman law.

2
Dr KAR [SVD SIDDHARTHA LAW COLLEGE, VIJAYAWADA]

I. Prior to commencement of the Constitution

Before commencement of the Constitution also, the liability of the government for
breach of contract was recognized (even during the British period). The East India
Company was established in India, essentially for commercial activities.

 As early as in 1785, in Moodalay v. Morton ((1785) I Bro CC 469), the Supreme


Court of Calcutta held that the East India Company was subject to the
jurisdiction of the municipal courts in all matters and proceedings undertaken
by them as a private trading company.

In a number of statutes also, such liability of the government had been recognized.
Thus, the provisions were made in the Government of India Acts of 1833, 1858, 1915
and 1935.

Contracts related to commercial activities and sovereign activities

However, an interesting distinction was mad by courts related to contractual


liability. Under the Government of India Act, 1858, the Courts hesitated in enforcing
contracts against the Government and made a distinction between commercial
activities and the governmental sovereign activities. While government could be
sued for commercial contracts, it could not be done when the contract involved the
exercise of governmental functions.

 In Nobin Chunder Dey v. Secretary of State for India (1 Cal. 11 I.L.R (1876)),
the Calcutta High Court held that a claim for enforcement of an auction sale
could not be enforced. In this case, the auction sale was a device for collecting
tax (excise duty), which, according to the court, amounted to a sovereign
function.

http://mls.org.in/books/Hb%20182.pdf

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