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contrary to modern jurisprudential thinking.
3. The need of the State, duty of its officials and right of the
citizens are required to be reconciled so that the rule of law
in a welfare State is not shaken. In a welfare State, the
functions of the State are not only the defence of the country
or administration of justice or maintaining law and order but
it extends to regulating and controlling the activities of the
people in almost every sphere–educational, commercial,
social, economic, political and even marital.
disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order and
repression of crime etc., which are among the primary and
inalienable functions of a constitutional Government, the
State cannot claim any immunity.
In the above case, the Supreme Court did not overrule its
judgement in the Kasturilal case (1965). However, it said that it is
applicable to rare and limited cases.
In Common Cause Case4b (1999), the Supreme Court again
examined the whole doctrine and rejected the sovereign immunity
rule. The Court held that the rule of State liability as laid down in
P. & O. Steam Navigation Company case is very outmoded. It said
that in modern times when the State activities have been
considerably increased it is very difficult to draw a line between its
sovereign and non-sovereign functions. The increased activities of
the State have made a deep impression on all facets of citizens’
life, and therefore, the liability of the State must be made co-
extensive with the modern concept of a welfare State. The State
must be liable for all tortuous acts of its employees, whether done
in exercise of sovereign or non-sovereign powers4c. Finally, the
court observed that the efficacy of Kasturilal case as a binding
precedent has been eroded.
In the Prisoner’s Murder case4d (2000), the Supreme Court
ruled that in the process of judicial advancement Kasturilal case
SUITS AGAINST PUBLIC OFFICIALS
1. President and Governor
The Constitution confers certain immunities to the president of
India and governor of states with regard to their official acts and
personal acts. These are:
(a) Official Acts
The president and the governors cannot be sued during the term
of their office or thereafter, for any act done by them in the
exercise and performance of their official powers and duties.
However, the official conduct of the president can be reviewed by
a court, tribunal or any other body authorised by either House of
Parliament to investigate charges for impeachment. Further, the
aggrieved person can bring appropriate proceedings against the
Union of India instead of the president and the state instead of the
Governor of that state.
(b) Personal Acts
No criminal proceedings can be started against the president and
the governors in respect of their personal acts nor can they be
arrested or imprisoned. This immunity is limited to the period of
the term of their office only and does not extend beyond that.
However, civil proceedings can be started against them during
their term of office in respect of their personal acts after giving two
months’ advance notice.
2. Ministers
The Constitution does not grant any immunity to the ministers for
their official acts. But, since they are not required to countersign
(as in Britain) the official acts of the president and the governors,
they are not liable in the courts for those acts5. Moreover, they are
not liable for the official acts done by the president and the
governors on their advice as the courts are debarred from
any immunity for their personal acts, and can be sued for crimes
as well as torts in the ordinary courts like common citizens.
3. Judicial Officers
The judicial officers enjoy immunity from any liability in respect of
their official acts and hence, cannot be sued. The Judicial Officers
Protection Act (1850) lays down that, ‘no judge, magistrate, justice
of peace, collector or other person acting judicially shall be liable
to be sued in any civil court for any act done by him in the
discharge of his official duty’.
4. Civil Servants
Under the Constitution, the civil servants are conferred personal
immunity from legal liability for official contracts. This means that
the civil servant who made a contract in his official capacity is not
personally liable in respect of that contract but it is the government
(Central or state) that is liable for the contract. But, if the contract
is made without complying the conditions specified in the
Constitution, then the civil servant who made the contract is
personally liable. Further, the civil servants also enjoy immunity
from legal liability for their tortious acts in respect of the sovereign
functions of the government. In other cases, the liability of the civil
servants for torts or illegal acts is the same as of any ordinary
citizen. Civil proceedings can be instituted against them for
anything done in their official capacity after giving a two months’
advance notice. But, no such notice is required when the action is
to be brought against them for the acts done outside the scope of
their official duties. Criminal proceedings can be instituted against
them for acts done in their official capacity, with the prior
permission of the president or the governor, where necessary6 .
Table 67.1 Articles Related to Rights and Liabilities of the
Government at a Glance
Article No. Subject-matter
294. Succession to property, assets, rights, liabilities
and obligations in certain cases
295. Succession to property, assets, rights, liabilities
and obligations in other cases
296. Property accruing by escheat or lapse or as bona
vacantia
297. Things of value within territorial waters or
continental shelf and resources of the exclusive
economic zone to vest in the Union
298. Power to carry on trade, etc.
299. Contracts
300. Suits and proceedings
361. Protection (immunities) of President and
Governors
NOTES AND REFERENCES
1. Under the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zones
Act, 1976, passed by the Parliament after the 40th
Constitutional Amendment Act, 1976.
2. The first provision was added by the 44th Amendment
Act (1978). This amendment abolished the
Fundamental Right to property and made it a legal right.
The second provision was added by the 17th
Amendment Act (1964).
3. Peninsular and Oriental Steam Navigation Company v.
Secretary of State for India, (1861).
4. Kasturilal v. State of UP, (1965).
4a. N. Nagendra Rao & Co. v. State of Andhra Pradesh
(1994).
4b. Common Cause, Registered Society v. Union of India
(1999).
4c. J.N. Pandey, The Constitutional Law of India, 49th
5. In Britain, the ministers are required to countersign the
official acts of the crown and are held liable in the courts
for those acts.
6. Criminal Procedure Code says–where a public servant
who is not removable from his office save by or with the
sanction of the Central or state government is accused
of an offence, committed by him while acting or
purporting to act in the discharge of his official duty, no
court can take cognizance of such offence without the
68 Special Provisions Relating to
Certain Classes
RATIONALE OF SPECIAL PROVISIONS
In order to realise the objectives of equality and justice as laid
down in the Preamble, the Constitution makes special provisions
for the scheduled castes (SCs), the scheduled tribes (STs), the
backward classes (BCs) and the Anglo-Indians. These special
provisions are contained in Part XVI of the Constitution from
Articles 330 to 342A. They are related to the following:
1. Reservation in Legislatures
2. Special Representation in Legislatures
3. Reservation in Services and Posts
4. Educational Grants
5. Appointment of National Commissions
6. Appointment of Commissions of Investigation
These special provisions can be classified into the following
broad categories:
(a) Permanent and Temporary – Some of them are a permanent
feature of the Constitution, while some others continue to
operate only for a specified period.
(b) Protective and Developmental – Some of them aim at
protecting these classes from all forms of injustice and
exploitation, while some others aim at promoting their socio-
economic interests.
SPECIFICATION OF CLASSES
The Constitution does not specify the castes or tribes which are to
be called the SCs or the STs. It leaves to the President the power
to specify as to what castes or tribes in each state and union
territory are to be treated as the SCs and STs. Thus, the lists of
the SCs or STs vary from state to state and union territory to union
territory. In case of the states, the President issues the notification
after consulting the governor of the state concerned. But, any
inclusion or exclusion of any caste or tribe from Presidential
notification can be done only by the Parliament and not by a
subsequent Presidential notification. Presidents have issued
several orders specifying the SCs and STs in different states and
union territories and these have also been amended by the
Parliament.1
Similarly, the constitution has not specified the classes of
citizens who are to be called the socially and educationally
backward classes, also known as Other Backward Classes
(OBCs). The 102nd Amendment Act of 2018 empowered the
President to specify the socially and educationally backward
classes in relation to a state or union territory. In case of a state,
the President issues the notification after consultation with the
governor of the state concerned. But, any inclusion in or exclusion
from the Central List of socially and educationally backward
classes specified in a Presidential notification can be done only by
the Parliament and not by a subsequent Presidential notification2 .
Unlike in the case of SCs, STs and OBCs, the Constitution has
defined the persons who belong to the Anglo-Indian community.
Accordingly, ‘an Anglo-Indian means a person whose father or
any of whose other male progenitors in the male line is or was of
European descent but who is domiciled within the territory of India
and is or was born within such territory of parents habitually
resident therein and not established there for temporary purposes
only’.
COMPONENTS OF SPECIAL PROVISIONS
1. Reservation for SCs and STs and Special
Representation for Anglo-Indians in Legislatures: Seats
are to be reserved for the SCs and STs in the Lok Sabha
and the state legislative assemblies on the basis of
population ratios.
The President can nominate two members of the Anglo-
Indian community to the Lok Sabha, if the community is not
adequately represented. Similarly, the governor of a state
can nominate one member of the Anglo-Indian community to
the state legislative assembly, if the community is not
adequately represented.
Originally, these two provisions of reservation and special
representation were to operate for ten years (i.e., up to
1960) only. But this duration has been extended
continuously since then by ten years each time. Now, under
the 95th Amendment Act of 2009, these two provisions of
reservation and special representation are to last until 2020.3
The reasons for the extension of the above two provisions
of reservation and special representation by the 95th
Amendment Act of 2009 are as follows3a:
(i) Article 334 of the Constitution lays down that the
provisions of the Constitution relating to the reservation
of seats for the Scheduled Castes and the Scheduled
Tribes and the representation of the Anglo-Indian
community by nomination in the House of the People
and the Legislative Assemblies of the States shall cease
to have effect on the expiration of the period of sixty
years from the commencement of the Constitution. In
other words, these provisions will cease to have effect on
the 25th January, 2010, if not extended further.
(ii) Although the Scheduled Castes and the Scheduled
Tribes have made considerable progress in the last sixty
years, the reasons which weighed with the Constituent
Assembly in making provisions with regard to the
aforesaid reservation of seats and nomination of
members have not ceased to exist. It is, therefore,
proposed to continue the reservation for the Scheduled
Castes and the Scheduled Tribes and the representation
of the Anglo-Indian community by nomination for a
further period of ten years.
The reason for this special representation to the Anglo-
Indians is as follows: “Anglo-Indians constitute a religious,
social, as well as a linguistic minority. These provisions were
necessary, for, otherwise, being numerically an extremely
small community, and being interspersed all over India, the
Anglo-Indians could not hope to get any seat in any
legislature through election”.4
2. Claims of SCs and STs to Services and Posts: The
claims of the SCs and STs are to be taken into consideration
while making appointments to the public services of the
Centre and the states, without sacrificing the efficiency of
administration. However, the 82nd Amendment Act of 2000
provides for making of any provision in favour of the SCs
and STs for relaxation in qualifying marks in any examination
or lowering the standards of evaluation, for reservation in
matters of promotion to the public services of the Centre and
the states.
3. Special Provision in Services and Educational Grants
for Anglo-Indians: Before independence, certain posts
were reserved for the Anglo-Indians in the railway, customs,
postal and telegraph services of the Union. Similarly, the
Anglo-Indian educational institutions were given certain
special grants by the Centre and the states. Both the
benefits were allowed to continue under the Constitution on
a progressive diminution basis and finally came to an end in
1960.
4. National Commissions for SCs and STs: The President
should set up a National Commission for the SCs to
investigate all matters relating to the constitutional
safeguards for the SCs and to report to him (Article 338).
Similarly, the President should also set up a National
him (Article 338-A). The President should place all such
reports before the Parliament, along with the action taken
memorandum. Previously, the Constitution provided for a
combined National Commission for SCs and STs. The 89th
Amendment Act of 2003 bifurcated the combined
commission into two separate bodies.5
The National Commission for SCs is also required to
discharge similar functions with regard to the Anglo-Indian
Community as it does with respect to the SCs. In other
words, the commission has to investigate all matters relating
to the Constitutional and other legal safeguards for the
Anglo-Indian community and report to the President upon
their working.6
5. National Commission for BCs: The National Commission
for BCs was set-up in 1993 by an Act of Parliament. Later,
the 102nd Amendment Act of 2018 conferred a constitutional
status on the commission. For this purpose, the amendment
inserted a new Article 338-B in the constitution. Accordingly,
the President should set-up a National Commission for the
socially and educationally BCs to investigate all matters
relating to the constitutional safeguards for the socially and
educationally BCs and to report to him. The President
should place all such reports before the Parliament, along
with the action taken memorandum.
6. Control of the Union over the Administration of
Scheduled Areas and the Welfare of STs: The President
is required to appoint a commission to report on the
administration of the scheduled areas and the welfare of the
STs in the states. He can appoint such a commission at any
time but compulsorily after ten years of the commencement
of the Constitution. Hence, a commission was appointed in
the year 1960. It was headed by U.N. Dhebar and submitted
its report in 1961. After four decades, the second
commission was appointed in 2002 under the chairmanship
of Dilip Singh Bhuria. It submitted its report in 2004.
Further, the executive power of the Centre extends to the