Rights and Liabilities of Government

In the governance framework of any nation, the government holds a pivotal role, acting as a custodian of public interest and welfare. However, this role is not without its complexities, as the government possesses both rights and liabilities that shape its interactions with citizens, institutions, and other entities. Understanding these rights and liabilities is essential for grasping the nuances of governance and the rule of law.

Articles 294 to 300 in Part XII of the Constitution pertain to the management of property, contracts, rights, liabilities, obligations, and legal proceedings of both the Union and the states. These articles establish the Union and the states as legal entities.

Property of union and the state

1. Succession:

All the property and assets that belonged to the Dominion of India, provinces, or Indian princely states before the Constitution came into effect now belong to either the Union or the corresponding state. Similarly, any rights, liabilities, or obligations of the government of the Dominion of India, provinces, or Indian states are now the responsibility of the Government of India or the respective state.

2. Escheat, Lapse, and Bona Vacantia:

If any property in India would have gone to the King of England or a ruler of an Indian princely state due to escheat (when someone dies without leaving an heir), lapse (losing rights because of neglect or not following proper procedures), or bona vacantia (property found without an owner), it now belongs to the state if it’s in that state’s territory, or to the Union if not. In these cases, the government gets the property because there’s no rightful owner.

3. Sea-Wealth:

All the land, minerals, and valuable things under the ocean within India’s territorial waters, continental shelf, and exclusive economic zone belong to the Union. This means that states near the ocean cannot claim authority over these resources. India’s territorial waters extend 12 nautical miles from the baseline, and the exclusive economic zone extends up to 200 nautical miles.

4. Compulsory Acquisition by Law:

Both the Parliament and state legislatures can pass laws for the government to acquire private property compulsorily. The 44th Amendment Act (1978) removed the requirement to pay compensation, except in cases where the government takes property from a minority educational institution or from someone’s personal cultivation land within the legal limits.

5. Acquisition under Executive Power:

The Union or a state can acquire, hold, and dispose of property through its executive power. Additionally, the executive power allows the Union or a state to conduct business activities within its own territory and in other states as well.

Suits by or Against the Government

Article 300 of the Constitution talks about how the Government of India and state governments can be involved in legal matters. It says that the Government of India can be sued or can sue others under the name of the Union of India, and state governments can do the same using their state’s name, like “State of Andhra Pradesh” or “State of Uttar Pradesh.” This means that the Union of India and state governments are considered legal entities for legal proceedings, not the actual governments themselves.

Regarding the liability of the government, Article 300 says that the Union of India and state governments can be sued or can sue in the same way as the Dominion of India and provinces or Indian states could before the Constitution. This rule can be changed by Parliament or state legislatures, but no such law has been made yet. So, currently, the situation is the same as it was before the Constitution.

Before the Constitution came into effect in 1950, the government could be sued for contracts but not for wrongs (torts) committed by its employees in their official roles.

• Liability for Contract:

• The Union or a state can enter into contracts for various purposes like acquiring, holding, or disposing of property.
• Conditions for such contracts include being made by the president or governor, executed on their behalf, and in the manner directed by them.
• Neither the president/governor nor the officer executing the contract is personally liable for it. Instead, the government is liable, making it suable in contracts.

• Liability for Torts:

• The government can be sued for civil wrongs committed by its officials, but only in non-sovereign functions, not sovereign ones like administering justice or constructing military roads.
• Traditionally, the government was immune from liability for sovereign functions, but this has changed with modern interpretations by the Supreme Court.
• The court ruled that the state cannot claim immunity for most functions except those essential for governance.
• Recent judgments have eroded the doctrine of sovereign immunity, making the state liable for all tortuous acts of its employees.

Suits against Public Officials

• President and Governor:

• Immunity for Official Acts: During their term and after, the president and governors cannot be sued for their official actions. However, their conduct can be reviewed, and grievances can be directed towards the Union of India or the respective state instead.
• Personal Immunity: They cannot face criminal proceedings or arrest for personal actions during their term, but civil proceedings are possible with advance notice.

• Ministers:

• No official immunity is granted to ministers. They are not held liable for official acts done under the president or governor’s advice, and they cannot be questioned for it in court. However, they can be sued for personal actions like any ordinary citizen.

• Judicial Officers:

• Judicial officers cannot be sued for their official acts under the Judicial Officers Protection Act (1850).

• Civil Servants:

• Civil servants are not personally liable for official contracts made according to constitutional conditions, but the government is liable.
• They are immune from legal liability for tortious acts related to sovereign functions of the government.
• Civil proceedings against them require two months’ notice for official acts, but no notice is needed for actions outside their official duties. Criminal proceedings need permission from the president or governor.

Also read about Public Services.