Polity (Rights and Liabilities of the Government)

1. Overview of Rights and Liabilities

Articles 294 to 300 in Part XII of the Indian Constitution address the property, contracts, rights, liabilities, obligations, and lawsuits concerning the Union and state governments. They provide a framework for the Union and states as legal entities, enabling them to manage assets, incur liabilities, and participate in legal proceedings.

2. Property Rights of the Union and States

• Succession of Assets:
  • All property vested in the Dominion of India or provinces before the current Constitution is transferred to the Union or respective state.
  • This succession includes assets, rights, liabilities, and obligations.
• Escheat, Lapse, and Bona Vacantia:
  • Properties without legal heirs or ownership (through escheat, lapse, or bona vacantia) become government property. If located within a state, the property vests with that state; otherwise, it vests with the Union.
• Sea Wealth:
  • The Union has rights to all resources under the ocean within India’s territorial waters, continental shelf, and exclusive economic zone (up to 200 nautical miles). Individual states cannot claim these resources.

3. Compulsory Acquisition of Property

• Legislative Power:
  • Both Parliament and state legislatures can enact laws to requisition private property. Compensation is generally not obligatory except for minority educational institution properties and certain lands under personal cultivation, as per the 44th Amendment Act (1978).
• Executive Power:
  • The government may acquire, hold, and dispose of property as needed to conduct trade or other functions.

4. Government Lawsuits (Article 300)

• Legal Entity Status:
  • The Union and each state can sue or be sued in their own names, such as “Union of India” or “State of Maharashtra.”
• Liability Extent:
  • The government’s liability for lawsuits mirrors that of the Dominion of India pre-Constitution. Currently, there is no enacted law modifying this pre-Constitution arrangement.
• Types of Liability:
  • Contractual Liability: Government contracts must meet specific constitutional criteria (signed by the President or Governor) to be valid and enforceable.
  • Tort Liability: Historically, the government is liable for non-sovereign functions but enjoys immunity for sovereign functions. However, the courts have begun to narrow this immunity.

5. Key Judicial Interpretations of Sovereign Immunity

• P&O Steam Navigation Case (1861):
  • Established that the government isn’t liable for torts committed by officials during sovereign functions.
• Kasturilal Case (1964):
  • Reaffirmed immunity in sovereign functions but faced criticism for being restrictive.
• Nagendra Rao Case (1994):
  • Suggested a shift, reducing the scope of sovereign immunity by recognizing the evolving role of a welfare state.
• Common Cause Case (1999) and Prisoner’s Murder Case (2000):
  • Further eroded the doctrine, highlighting that states must be accountable for most functions.

6. Protections for Public Officials

• President and Governors:
  • Protected from lawsuits regarding official acts, even post-tenure. They cannot face criminal charges for personal acts while in office, though civil cases can proceed with two months’ notice.
• Ministers:
  • No immunity for official actions, but cannot be held liable for acts performed on the advice of the President or Governors.
• Judicial Officers:
  • Judges and magistrates enjoy immunity for acts done within their official duties, as outlined by the Judicial Officers Protection Act (1850).
• Civil Servants:
  • They are immune from liability for contracts and torts related to sovereign functions. However, this immunity does not cover actions outside official duties, and civil or criminal proceedings can be instituted accordingly.

7. Relevant Articles in the Constitution

• 294–295: Succession of assets, rights, and obligations.
• 296: Property acquisition by escheat or lapse.
• 297: Exclusive economic zone resources.
• 298: Governmental power in trade.
• 299: Contracts.
• 300: Government lawsuits.
• 361: Immunities of the President and Governors.

8. Further Clarifications on Liability and Immunity

• Understanding Government Contracts (Article 299):
  • For any contract involving the Union or a state to be valid:
    • It must be expressed to be made by the President or Governor.
    • It should be executed on their behalf.
    • It must involve an authorized person as directed by the President or Governor.
  • These contracts are legally binding on the government, but neither the President/Governor nor the officers involved are personally liable. This ensures that contracts are enforceable in courts without implicating individual government representatives.
• Liability in Torts:
  • The principle of “sovereign immunity” traditionally shields the government from liability for certain actions (sovereign functions).
  • However, landmark cases such as the Nagendra Rao and Common Cause cases have narrowed this immunity. Modern judicial thinking suggests that the government should be liable for negligence, even in cases involving state actions, if citizens’ rights are infringed. This shift aligns with India’s transformation into a welfare state, emphasizing accountability over absolute immunity.
  • Exceptions to Immunity: Functions like maintaining law and order, administering justice, and defending the nation are still largely immune from liability, but most other functions are treated as non-sovereign, where government accountability is upheld.

9. Immunity Specifics for Different Government Officials

• President and Governors (Article 361):
  • Immunity applies to all acts within official powers. While in office, they cannot face criminal proceedings or be arrested for personal acts, though civil cases can proceed with due notice.
  • The Constitution also provides mechanisms for accountability through impeachment, allowing Parliament to investigate any charges.
• Ministers and Counselors:
  • Ministers are not immune for personal acts and can face prosecution like any citizen. However, actions taken by the President or Governor based on ministerial advice cannot lead to ministerial liability.
• Judicial Officers:
  • The Judicial Officers Protection Act (1850) exempts judicial officers from lawsuits for acts within their judicial capacity, preserving judicial independence.
• Civil Servants:
  • Civil servants, when acting in their official capacity, are protected from personal liability for contracts made on behalf of the government, as long as constitutional requirements are followed. They can face liability, however, for actions that fall outside their official duties.

10. Evolving Role of the State in Modern Jurisprudence

• From Absolute Sovereignty to Accountability:
  • Historically, the government enjoyed broad immunity based on the doctrine that “the King can do no wrong.” This concept, rooted in British law, has evolved in Indian jurisprudence to accommodate modern democratic and welfare-oriented governance.
• Role of the Supreme Court in Shaping Liability:
  • Over time, the Supreme Court of India has advocated for a balanced approach to state immunity. For instance, in cases like Nagendra Rao and Common Cause, the Court highlighted that states should not hide behind sovereign immunity to evade responsibility, especially in welfare functions impacting citizens’ rights.
  • Recent rulings emphasize that the government’s immunity must be limited to core sovereign functions (such as defense and justice administration) to prevent misuse of power and promote citizen welfare.
  • The Court’s perspective on state accountability reflects a shift toward greater transparency and alignment with democratic values, underscoring the importance of judicial remedies for citizens affected by governmental actions.

Summary Table of Key Articles Related to Government Rights and Liabilities