One piece of good news after decades of independence is that some colonial anachronisms in the statutes are going to be corrected. Laws invoking His/Her Majesty, for instance, might be scrapped. One legislation dealing with the estate of our own King of Oudh will also go into oblivion. The bad news is that some of the Common Law doctrines of England still linger in legislation as well as judicial pronouncements. While references to monarchs of another age hurt only national pride, the dusty doctrines can play havoc with human rights.
The doctrine of "eminent domain" of 16th century provenance, incorporated in the land acquisition law, has impoverished many small land owners since 1894. Even its 2013 avatar, with its unwieldy name, empowers the government to compulsorily take over land for public sector undertakings.
Another dogma panting on the legal draftsmen's table is "sovereign immunity". It is based on the principle that "the King can do no wrong" and he cannot be sued in his own courts. The welfare state has kept this tenet on artificial respiration despite the Supreme Court's call since 1965 to turn off the life support. Hiccups occur in several cases even now.
It was in 1965 that a constitution bench found itself helpless to do justice when a policeman robbed a merchant of his gold and fled the country (Kasturi Lal vs State of UP). Both the Allahabad High Court and the Supreme Court ruled that the businessman's claim for compensation cannot be sustained, as the constable exercised "sovereign power" during the pretended search and seizure. The apex court stated that it was disturbed by this unsatisfactory position of law. "It is time that legislatures seriously consider whether they should not pass enactments to regulate and control the claim of immunity." It noted that even in England, where the doctrine originated, the law has changed.
Court decisions have swung to and fro according to the mind of the judges. In the 1997 case, Rajkot Muncipal Corporation vs Manjuben, the Supreme Court dealt with a case in which a tree fell on a man walking on the pavement causing his death. The widow demanded compensation. The Supreme Court rejected it stating that "the conditions in India have not developed to such an extent that a Corporation can keep constant vigil by testing the healthy condition of the trees in public places frequented by passers-by. There is no duty to maintain regular supervision thereof, though the local authority is under a duty to plant and maintain trees. There would be no Common Law right to file suit for negligence."
For half a century since the Kasturi Lal case, courts were taking different stands, sometimes strict constructionist and often moved by human rights. One set of judgments repeated the original call for a law to do away with the immunity claim, feebly but repeatedly put forward in courts by public authorities and rejected outright by judges.
Last fortnight, the Supreme Court dealt with the drowning of 22 people in 1993 while taking a joy ride in Sursagar lake in Vadodara (Vadodara Municipal Corporation vs Purshottam Murjani). The corporation denied its responsibility and passed on the blame to the contracting company that arranged the entertainment. Rejecting its stand, the judgment said: "We do not find any ground to exonerate the corporation. The activity in question was its statutory duty. Mere appointment of a contractor or employee did not absolve the corporation of its liability to supervise the boating activities... The corporation had a duty of care when the activity of plying boat is inherently dangerous."
The significance of this judgment is that it was an appeal against the award of Rs 30 lakh by the Gujarat State Consumer Commission. Consumer forums normally deal with negligence and deficiency in service. Constitutional tort (law of compensation for negligence) is the turf of high courts and the Supreme Court. Still, the Supreme Court upheld the award of the state commission. This snuffs out the defence of public authorities that they are immune from the law of torts. Insurance companies, which generally support the authorities in such circumstances, should also take note of this development. The court has sent a copy of the judgment to the Law Commission "for further necessary action". In fact, two Bills on this subject were introduced in Parliament in the 1960s', but they had lapsed.
Three years ago, the court had raised the right of the victims to the level of human rights. In that case, Municipal Corporation of Delhi vs Uphaar Tragedy Victims, 60 people died in a cinema fire due to the negligence of the authorities, including the electricity suppliers and the police. The court crafted a new rule called "public safety duty". The pity is that it is not the new doctrines attuned to modern times that prevail, but ghosts of the earlier centuries.
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