Why is it in the news?
1.Bengal Governor has been accused of sexual harassment by a woman who is a contractual staff at Raj Bhawan. She alleged that the Governor had molested her. She filed her complaint at Hare Street Police Station of Kolkata.
2.The Governor hit back saying that truth would triumph and he would not be cowed down by engineered narratives. He said that if anybody wanted some election benefits by maligning him, let the god bless them but they cannot stop his fight against corruption and violence in Bengal.
3.Sources in Raj Bhawan said that the woman was blocking complaints from people being sent to the election commission of India and that when she was reprimanded for that, she alleged molestation.
4.The state finance minister Chandrima Bhattacharya said that the allegation is levelled against the Governor for atrocities against a woman. He called it a shameful episode. The Raj Bhawan retaliated by issuing a ban on the entry of the finance minister into the premises of Raj Bhawan at Kolkata Darjeeling and Barrackpore. Governor has also instructed that he will not participate in any function attended by the minister.
5.The Governor also banned the entry of police into Raj Bhawan premises under the guise of conducting unauthorised illegitimate, sham and motivated investigation to placate political bosses during elections.
6.The BJP leader Suvendu Adhikari said that since TMC is politically cornered on the issue of teachers recruitment scam and so it is looking for a breathing space.
7. Relations between the Governor and the state government have come down to the lowest level. There is no love lost between them. Earlier the Governor opened a Peace room at Raj Bhawan where anyone can lodge a complaint of violence. He reached out to SandeshKhali to talk about women’s rights and Naari shakti. Earlier, he wanted to go Cooch Behar but the election commission stopped him from visiting there. So, a tug of war is going on between the Governor and the state government in West Bengal for long time.
What is privilege ?
1.Privilege is the antithesis of the right to equality guaranteed under article 14. The right to equality ensures that everybody is equal before law and nobody would be denied equal protection of law. But privilege means immunity enjoyed by certain classes of people and institutions. Article 361 of our constitution deals with the immunity to the President of India and the Governors of the states. They shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. No criminal proceedings whatsoever shall be initiated or continued against the President or the Governor of the state, or any court during the term of his office. No process for the arrest or imprisonment of the President of India or the Governor of the state shall be issued from any court during the term of his office. He cannot be named as an accused in any criminal case. The constitution contemplates a complete bar against prosecuting the Governor. The Police can act only after the Governor ceases to be in office. In the case of Rameshwar Prasaad vs Union of India (2006), the Supreme Court held that the Governor enjoyed immunity even on allegations of personal malafides. Thus, when in 2017, the Supreme Court allowed fresh charges of criminal conspiracy against the Bjp leaders L.K. Advani, Murali Manohar Joshi, Uma Bharti in the 1992 demolition of Babri Masjid, the trial did not take place for former Uttar Pradesh Chief Minister Kalyan Singh since he was the then Governor of Rajasthan.
2.No civil proceedings in which relief is claimed against the President of India or the Governor of the state, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he entered upon his office as the President of India or as Governor of such state, until the expiration of two months advance notice in writing has been delivered to the President or the Governor. In addition, there are certain people or institutions which have been bestowed with privileges or immunities in criminal activities or torts (civil wrongs). These are following -
Acts of states
1.An act done in an exercise of sovereign power in relation to another state or subjects of another state, cannot be questioned by the municipal courts. Similarly, acts done by the public official, if done with the prior approval of the state, may render their acts as an act of state. For example, if the Government of India acquires a foreign territory, the residents of that territory cannot take action against the Indian Government. For example, when the government of India annexed Goa, Daman and Diu, the people of these territories could not sue the government of India in any municipal court. Similarly, when the government of India exercises its sovereign power by declaring war against Pakistan to defend its territory, the injured citizens of Pakistan cannot seek remedy by instituting a case in the municipal court of India. But the act of state is not available against its own subjects. They are governed by the general law of the country. In the case of Forester vs Secretary of the state, the privy council held that the resumption of the estate, seizure of the arms and military stores of Begum Samran did not amount to an act of state. The privy council issued the order of recovery from the government the arms and military stores seized. Since the Begum could not establish the title with respect to land, she was not handed over the state.
2.The Supreme Court held that the doctrine of sovereign immunity has no relevance in the present context when sovereignty vests in the people. The state is treated in performance of its functions like a private company; it is therefore liable for negligence of its officers. In the case of state of Rajasthan vs Vidhyawati, the Supreme Court held that the government will be vicariously liable for the tortious acts of its employees. The court held that the functions of the government in a welfare state are manifold, all of which cannot be said to be activities relating to exercising sovereign powers. The function of the state not only relates to the defence of the country or the administration of justice but they extend to many other spheres like education, commercial, social, economic, political and even marital. Where the state was involved in commercial or private function or where the officers are guilty of interfering with the life and liberty of a citizen, the doctrine of sovereign immunity cannot be enforced. For example, when a police vehicle causes death to a citizen on the road, the court gives compensation to the widow of the dead person. The government has to pay crores of rupees by way of compensation to the legal nominees to the victims.
Foreign Sovereign
According to section 86 of civil procedure court, no suit can be brought in a court of law against foreign sovereigns, or ambassadors or high commissioners or other diplomatic envoys without the prior permission of the government of India . The immunity under section 86 of the act also covers foreign corporations which are owned by the state and are like government departments even though they carry on commercial or trading activities.
Public officials
1.Public officials cannot be sued for torts committed by them or by their subordinates. But if they cause injury to others in exercise of their personal powers, they can be sued and they cannot plead the defence of the sovereign authority. However, no action can be brought against a public official for acts done in exercise of sovereign power. For example, if a person has been killed by the Police when he was leading a mob, the concerned police officer cannot be sued in the court of law. At best, his conduct may be inquired into and may be ascertained as to whether the police officer exceeded his power of self defence or not.
2.Public officers are not personally liable for the wrong acts done by their subordinates. They are responsible for such acts only when they have ordered them or ratified them because subordinate officers are not their servants but are servants of the state and there is no master and servant relationship between them.
Minors
1. Under the criminal law in India, a child below the age of seven years cannot be held liable for any offence. A child between the age of seven and twelve is not liable unless he had attained sufficient maturity to judge the nature of consequence of his conduct. Under the law of contract, a minor is incompetent to contract and an agreement with minor is void ab initio.
2.But sometimes a minor’s act may be a tort as well as a breach of contract. In such cases his tortious act is independent of contract and he will be liable for tort. For example, if a minor has hired a mare from the plaintiff for riding and in the contract it is mentioned that the mare should not be used for jumping and lurking but he made the mare jump over a fence causing serious injury. It was held in the case of Bernard vs Hangings that the minor was liable for causing injury to the property of the plaintiff by the negligence act because the tort was independent from the contract. But if the tortious act done by a minor is so connected with the breach of contract that it is the part of the same transaction, no suit for tort can be brought against him. For example in the case of Jennings vs Rundal, it was held that since a minor hired a mare from the plaintiff for riding and killed it by riding it too hard. It was held that injury was connected with breach of contract and therefore, no suit for damages for injury caused to the mare could be brought against the minor. But a minor cannot take advantage of his own fraud and if he does so he will be compelled to return all that he had obtained by fraud.
3.A father is not liable to the torts of his minor son even though he is living with him. But a father will be liable for the tortious act of his son where the son is acting as servant of his father. In such cases the liability of the father is similar to the liability to the employer. For example, if the minor son is driving a car negligently, the father will also be liable for negligence. Secondly, the father will also be liable for his own negligence, if due to his negligence his son gets an opportunity to do wrongful acts or permits him to do such acts. For example, if the father negligently leaves his gun in the hands of his son without giving him proper guidance for handling he will be liable for the torts of his son.
Trade Union
Under section 18 of the trade union act, no action can be brought against the members of the trade union in respect of a labour disputes.
Lunatics
If it is proved that the insanity is such a serious nature that the defendant was unable to know the nature of his act, he will not be liable in tort because the act would not be a voluntary act. Under section 84 of Indian penal code. An insane person gets immunity from punishment because he is incapable of knowing the nature of his act.
Who cannot sue ?
There are seven categories of persons who cannot sue subject to certain limitations.
An alien enemy who is residing in the enemy territory. Such a person does not have the right to sue for tort unless obtains the permission of the central government under section 83 of the civil procedure court. For example A is a resident of an enemy country and wants to sue B, a resident of India, he cannot do that unless he obtains the permission of the central government.
Convict - A convict is a person who has been sentenced to the death penalty or imprisonment by court of law. Under the forfeiture act 1870, the disability had been imposed upon the convict and he had no right for any injury to his property and for recovery of a debt. But by the criminal justice act 1948, this disability has been removed. Now a convict can also sue another person for personal injury such as assault or slander or injury to his property during his imprisonment. In the case of Smt. Kevalpati vs State of U.P., the Supreme Court awarded one lakh rupees as compensation to the widow because her husband had been killed by another convict due to failure of jail authorities to protect him.
Husband and Wife - After the enforcement of our constitution since 26th January 1950, right to equality and right against discrimination only on grounds of sex have been prohibited. Thus now the wife can sue the husband for any tort committed by him against her and the husband can sue the wife for any tort committed by her against him. Similarly, the wife can sue another person for tort committed by him against her without joining her husband and the husband can sue another person for tort committed against him without joining the wife.
A foreign state - A foreign state can have the right to sue under section 84 of civil procedure court provided such states have been recognised by the central government.
Corporation - a corporation is a legal person. A corporation may sue or be sued on its own name. It can sue for any defamatory statement or other torts affecting its property or business in its own name. But it cannot sue for personal injuries such as assault, battery or libel because such acts cannot be committed against a corporation. But it can sue if such defamatory statements adversely affect its business.
Insolvent person - If any bodily injury is caused to an insolvent, such as assault or defamation, he shall have the right to bring action against the wrongdoer. But where an injury is caused to the person and property of the insolvent, the right of action will be split. With respect to the injury of his body, the insolvent has the right to sue and with regard to the injury of his property, the action will be brought by the official assignee or the receiver. It may so happen that both insolvent and the official assignee can bring a suit jointly also.
An infant or minor - In English law, a minor can sue for the tort committed against him subject to that by his next friend or guardian but he cannot seek a remedy for the injury sustained when he was in his mother’s womb. But in a similar situation, the Supreme Court of Canada provided the remedy for the infant. In India there is no such law governing the liability for pre-natal injury to unborn children. The legislation should pass such laws on the lines of English law.
Conclusion
Thus there are certain categories of people who cannot sue a person for their loss and there are some people who cannot be sued by any person like the President of India and Governors of the states, sovereigns, foreign ambassadors, public officials, The privileges enjoyed by above categories of people are governed by constitutional and international laws and they cannot be tried in the municipal court of any country.
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