CLG214 | Government Liability in India

The liability of government and its officers (hereafter referred to as ‘government liability’ collectively), as well as the safeguards and immunities enjoyed by them, is a constant talking point in India, be it in the form of the political tensions surrounding the sanction to prosecute public servants or the effectiveness of judicial remedies against government high-handedness. These discussions though have not necessarily found a robust place within the Indian legal scholarship. This is despite the fact that the extent of government liability is an issue that students encounter right from their first year of law school. In the foundational course on Tort Law, the following topics in particular bring into sharp focus questions of government liability:

● Can the victims of a tortious injury sue the government in the same way as other entities/individuals?

● Does government attract vicarious liability for the actions of its officers?

● Are pure omissions actionable under negligence?

● What are the circumstances under which imprisonment of a plaintiff may be justified, despite all the elements of false imprisonment being fulfilled otherwise?

In the context of Indian Tort Law, these questions are by and large viewed through the prism of Constitutional Torts, sidelining complex questions of duty of care, its breach, and causation.

Moreover, the vestiges of sovereign immunity continue to render meaningful remedy uncertain for those who have suffered at the hands of government tort feasors. Finally, the lack of engagement with torts like misfeasance in public office and breach of statutory duty means that the foundational course on Tort Law leaves more questions than answers on government liability.

The core course on Administrative Law provides quite a few insights into the causes of action available against governmental action. But, Administrative Law, in the context of India, is largely consumed by the grounds of judicial review available under Article 14 of the Constitution of India. Very little time or space is set aside for other issues like the immunities available under various civil and criminal legislation, as well as non-constitutional causes of action available against government and its officers.

This elective course on government liability, which is at the intersection of public and private law, is an attempt to study the many questions left unaddressed by the core courses. The course, in its first iteration, aspires to bring together some of the main questions confronting government liability in India and act as a platform to mull over the answers to these questions.

The introductory module looks at a number of important theoretical questions confronting government liability: Despite the Diceyian notion of equality, do governments and their officers deserve special treatment? Would a more stringent regime of government liability reduce government impunity and increase deterrence? How have Indian courts viewed government liability? What all actors and institutions would form the subject matter of this course? This module then lays down the foundational framework on which the subsequent modules would build on.

In the second module, the various procedural safeguards available to government and its officers in India at the pre-trial stage are examined in detail. While not exhaustive, the module would look at some of the important safeguards, in the form of the notice requirements under the Code of Civil Procedure, as well as analogous requirement under other legislation giving rise to a civil cause of action. The module would also look at another vexed question within government liability: Under what circumstances should a sanction for prosecution be obtained against government servants? Are sanctions required even in cases when the officer has acted far beyond their statutory powers/discretion?

Moving on from the pre-trial procedural safeguards, module III looks at the various substantive immunities – in the form of sovereign immunity and evidentiary privileges – and what impact they have on fixing government liability. This module would also look at some of the less discussed immunities and causes of action available against the government – the ever proliferating good faith immunity clauses and the tort of misfeasance in public office. Other than understanding the extent of substantive immunity available to government in India, the module is an attempt to gauge whether there exists causes of action other than the ones which are commonly resorted to.

The final module would start off with a discussion of the principles (or the lack thereof) underpinning the award of compensation against government. The module would also look at compensation models proposed by scholars working in this area and initiate a conversation on whether these models could be transplanted in India. The course would conclude with a few case studies and data points, which throw light on the importance of government liability as a specialised field of study within India.

Please note that while most of the courses on government liability usually touch upon the liability of the government in contract, this course does so only cursorily. A brief discussion on the liability of the government in contracts is undertaken in the final session.

The readings for the course are a mix of scholarly articles, book chapters, case law, and statutory provisions. A detailed, week-wise distribution of course materials is provided below. Since the Indian scholarship on government liability is limited, heavy reliance has been placed on foreign materials, especially for theoretical topics. The Indian position on most of the doctrines/principles, is sought to be examined through a study of judgments and statutory provisions.

The course will be conducted in a seminar style and students are expected to be active participants in each class.