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Published: Fri, 02 Feb 2018
Administrative Immunity from Statute Operation
A matter in dispute has four feet: law, transaction, custom and the royal edict; (among them) the later one supersedes the earlier one.
– Section 58, Sub-section 39, Kautiliya Arthashastra. 
Serving Justice- The Objective: After man became civilized, not only to serve justice in disputes has been the greatest concern but also it became necessary to ensure that justice is not only done but is deemed to have been done, as Lord Denning rightly said that when there is a good man in the saddle, the unruly horse can be controlled…it can be made to jump over obstacles and come to the other end, that of justice.
Administrative law and dispensation of justice: The Administrative Law deals with the structure, power and functions of the various organs of administration; the methods and procedures followed by them in expressing their powers and functions; the methods by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation  . Therefore, given the importance and complexity of administrative functions it is explicitly clear that the privileges available to Government in legal proceedings before the ordinary courts of law, in which the interests of common people are involved is a thoroughly thought out path to let the administrative functions be carried out with smoothness, and such privileges have now become an inseparable and indispensable part of Administrative Law  .
Administrative law was earlier considered as a part of Constitutional Law. The vast proliferation of administrative powers developed the Administrative Law as an independent subject of study requiring a lot of skill and hard work to understand the basic tenets of governance. There are, however, very wide areas which are of common interest to both Administrative Law as well as the Constitutional Law; both are concerned with the functions of Government and both are considered the part of public law. Regarding the distinction between two systems it has been characterized and correctly evaluated by Hoods Philips, as “Constitutional law is concerned with the organization and functions of Government at rest, whilst Administrative Law is concerned with that organization and those function in motion”  . Administrative Law is concerned with day to day affairs of the Government while constitutional law concerned with its structure. Therefore, drawing conclusion from this one could say that the Constitutional Law represents the static aspects; while the Administrative Law is concerned with dynamic aspect of government, i.e. the Constitutional Law is concerned with the theoretical set up and administrative law, the practical. 
Suits between the administration (Government) and private individuals: It could be understood that today government has larger interaction with common people than in past times. Due to the change in the concept of police state to welfare state there is larger interaction of Government with common people which is also the need and demand of welfare state as well as democratic set up of government. This leads to more and more litigation in ordinary courts between the government and common people.
Sovereign immunity: Sovereign immunity as per Lord Denning is largely an outdated concept, and if the government will not acknowledge this the courts must try to contain it. In India, it is the Constitution through which the Government draws and exercises its powers and gets them legitimatized. The Constitution is the reservoir of all the powers of the government. However, equality clause  of the Constitution envisages absence of any special privileges to anyone including government, but since government is a supreme in the functions it performs so it is essential to distinguish it legally on the basis of law from private individual. Law allows certain privileges to the government while it is in litigation with private individuals before ordinary courts.
Scheme of discussion: The scope of this research is to find out the several legally recognized immunities that the administrative authorities enjoy in law suits between such authorities and private parties. The researcher will first set out to answer the question as to is the state bound by a statute applicable to common people? This aspect would be discussed in some detail and the question of government privilege not to produce documents will be dealt with wherein the position in India with the help of decided cases. The position in England will not be taken up by the researcher due to paucity of space and time. Then, the privilege of the administrative authorities with respect to ‘notice’ and ‘limitation’ will be briefly elaborated on. Finally, some conclusions will be drawn. In this research the researcher will defend her argument that the administration must be entitled to certain privileges and immunities against operation of statutes for the smooth functioning of the administration in a country like India which has scores of different statutes operating in different parts of the country at a single point of time, which compels the administration to face several challenges in its everyday functioning. If the many hindrances and obstacles come in the way of the administration, there will be a complete breakdown of the administrative machinery of the State. The researcher has used the doctrinal method of research, and referred to certain primary sources such as statutes, for example the Constitution of India, Code of Criminal Procedure, 1973, The Civil Procedure code 1908, The Evidence Act, 1872, The Limitation Act,1963 etc. She has used certain books such as Administrative Law, by C. K. Thakkar, Administrative Law by S. P. Sathe, Principles of Administrative Law by M. P. Jain and S. N. Jain edited by Justice Guru Prasanna Singh and Alok Aradhe and several internet resources listed in the bibliography.
The researcher will seek to find answers to the question whether administrative immunity from statute operation is legally valid in India, if such immunity is justified, and how far is a state legally bound to a statute.
To what extent is the State bound by a statute? In England the Crown s not bound by a statute unless it is explicitly named therein or is bound by necessary implication  . In India this tenet was embraced in the ancient privy council decision in the case of Province of Bombay v. Municipal Corporation of the City of Bombay  . This took place just before India’s independence in the year 1947  . after India became independent, a majority decision supporting the tenet was delivered in support of the tenet in the case of Director of Rationing v. Corporation of Calcutta  where the West Bengal Government was sought to be prosecuted by the Corporation for storing supplies without a license. The court held by majority that the state was not bound by the statute unless it is expressly mentioned in the statute or it arose by necessary implication. However in two most important cases Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta  and India v. Jubbi  the opposite view was upheld that a state was bound by a statute unless it is expressly exempted from it in so many words in the statute. The above cases compel one to conceive the view that the court of law from time to time has taken different positions based on the facts and circumstances of the different cases.
Government privilege not to produce documents: All courts of law requires the document on the basis of which it has to deliver the judgment. It is the need of individual that justice should be done by evaluating evidence produced by both the litigating parties. In India, the privilege of the government to withhold documents from production in the courts is claimed on the basis of Sections 123 and 124 of the Indian Evidence Act, 1872 (hereinafter referred to as the IEA).
Section 123 of the IEA provides:
“Evidence as to affairs of State.-No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”
Section 124 of the IEA subsequently provides that:
“Official communications.-No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.”
The above two provisions give the government an upper hand and a great deal of privilege an advantage against private persons in litigations of any sort. This clearly jeopardizes the basic tenets of administrative law which stands for ensuring the fairness in the administration of justice and also that of the IEA. However, the Privilege if claimed is not conclusive in nature, in the sense that where courts have no option except to admit the documents for which the privilege is claimed in certain cases. This proposition is based on the legal mandate which is incorporated in s. 162 of the IEA which says:
“Production of documents.-A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.”
In the modern era of welfare state, the administration has come to enjoy wide powers to interfere with the person and property of the individual  . It is certain that power of administration has to grow further in future. So with the increase in government activities, state undertaking several functions which were so far performed by the individuals. Thus, the interactions of individual increases with the government, causing sometimes people get aggrieved by government’s action and in order to satisfy their grievances they resort to the courts. The courts adopt different procedures in the litigation where the government is one of the parties against the common man in comparison to the suits between common people  . Whenever the matter comes before the courts in India, it decides the claim of privilege to withhold the documents on the basis of three distinct issues. One is the ‘public interest’ the other is ‘openness in government’ as part of Article 19(1)(a) of the Constitution of India (freedom of speech and expression) and the third is within the purview of Article 21 (Protection of life and personal liberty) as interpreted by the Supreme Court  .
In the case of State of Bihar v. Kasturbhai Lalbhai  the court while explaining the expression “affairs of the State” said that it means issues that are of :
“…public nature, with which the State is concerned, or the disclosure of which will be prejudicial to the public service. When the State is a party to the litigation and documents relate to commercial or contractual activities of the state…”
In such cases privilege can be claimed regarding those documents. By saying so the court meant that when by suppressing certain documents, the extent to which public interest is catered to is more than when disclosed, then this privilege of non-disclosure can be claimed  .
Further explaining the position in India, the case named State of Punjab v. Sodhi Sukhdev Singh  which was a 1961 case, the court held the following that it:
“Cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. This is a matter for the authority concerned to decide; but the court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of state under Sec. 123 or not.”
The court further held in another instance that:
“It must be clearly realized… that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the minister in charge of the department, or even the government in power has no relevance in making a claim for privilege under Sec. 123.  “
Also “the sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else.” 
The court also held in Sukhdev case that:
“If the document cannot be inspected, its contents cannot indirectly be proved, but that is not to say that other collateral evidences cannot be produced which may assist the court in determining the validity of objection.”
In another case called Amar Chand Butail v. Union of India  that the head of the department:
“Should never claim privilege only even mainly on the ground that the disclosure of the documents in question may defeat the defence raised by the state. Considerations which are relevant in claiming privilege on the ground that the affairs of the state may be prejudiced by disclosure must always be distinguished from considerations of expediency…”
However, in certain cases the courts of law did inspect documents before giving its decision. For example in the case of State of Kerela v. The Midland Rubber & Produce Co  . the court ruled after going through the documents that the documents had nothing to do with public interest as such and they were only instrumental in defending the contentions of the State.
A landmark case in the area of determining government privileges in withholding of documents happens to be State of Uttar Pradesh v. Raj Narain  where the judgment of the court was as follows:
“The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclution from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all the relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in ublic interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. .. To illustrate, the class of document would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State capital and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld.”
“the concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Art, 19 (1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure serves an important aspect of public interest.”
Thus Justice Bhagwati held that:
“The citizens’ right to know facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.”
Section 80 of the Civil Procedure Code, 1908: Civil Procedure Code, 1908 (hereinafter referred to as CPC) has laid down in Section 80 of it that no suit shall be instituted against the government, or against a public officer in respect of any act done by him in his official capacity, until the expiration of two months after notice in writing has been given in the manner provided in the section. Section 80 now, comes to embrace injunctions, declarations and contracts in its ambit.  In the case of Babulal v. Madhya Bharat  it was held that Section 80 covers both past actions as well as the future acts of the Government which are in the stage of contemplation. Further in the case of B. L. Shukla v. Fatmabai Ismail  that Secton 80 completely debars the court from entertaining any suit against the government instituted without complying to the mandates of the section  . In the case of Bihari Chowdhary v. State of Bihar  the court held that suits filed before the expiration of two months must be rejected.
Section 82 of the Civil Procedure Code, 1908 and Section 112 of the Limitation Act, 1963: Section 82 of the CPC provides that when a decree is passed against the Union of India, or a state or a public service officer, a time must be specified in the decree within which it must be satisfied. If the same does not happen then the court will have liberty to report the case for orders of the government. Issuance of execution shall not take place unless the decree remains unsatisfied for a period of three months from the date of the decree  . Under s. 112 of the Limitation Act, the government is granted 30 years of limitation for institution of suits by it on its behalf.
Conclusion: Walking through the meandering path of several different judgments it could be found that there are several advantages and disadvantages of administrative immunity from statute operation. Speaking of disadvantages, in the case of Director of Rationing v. Corporation of Calcutta the dissenting opinion by Justice Wanchoo said that the common law rule that said State is not bound by Statutes unless it is explicitly mentioned therein or implied by necessary implication happens to not be in consonance with the rule of law which happens to be one of the basic tenets of administrative law. Further in case of government’s privilege not to produce documents, it should be held in mind that such a privilege is undoubtedly a serious digression from the basic tenets of Evidence Law as well as tenets of serving justice in a fair and reasonable manner. If such a privilege is allowed without any check then inevitably the government would withhold documents to serve its own end in the name of secrecy, security or public interest  . Further, the 100th report of the Law Commission says that requirement of notice under S. 80 of the CPC is injustice because it implies that even a meritorious claim would be rejected on such trivial technical grounds and the government would be unjustly favoured. Even in case of contempt of court by the government, the courts of law have found that such cases should be dealt with leniently because the government “grinds slowly”  . Therefore in the light of the above factors, the researcher partially gives up her argument that administration must be entitled to certain privileges and immunities against operation of statutes for the smooth functioning of it. The law seems to be biased towards the government at this juncture. However, a total eradication of such immunities would indeed cause a breakdown of the administrative machinery. Given that the Right To Information Act (RTI Act) has seen the light of the day, it can safely be concluded that the government’s immunities in suits and proceedings ultimately have a check now. The RTI Act 2005 applies to any ‘public authority’ that is covered by criteria laid down in Section 2(h) of the Act. A public authority includes any authority or body or institution of self-government established or constituted:
a) by or under the Constitution;
b) by any other law made by parliament;
c) by any other law made by State Legislature;
d) by notification issued or made by the appropriate Government.
No public authority is completely excluded from the coverage of the RTI Act. All three armed forces, the Ministry of Defence, the Coast Guard, the Department of Atomic Energy, nuclear power plants and aeronautics and space research organisations (except the Aviation Research Centre) and state civilian and armed police organisations are covered by the RTI Act. Therefore in conclusion it must be said that privileges with checks could serve both ends of the issue: smooth functioning of the complicated affairs of the administrative bodies and serving justice in a just and fair manner.
LIST OF CASES REFERRED
Amar Chand Butail v. Union of India AIR 1964 SC 1658
Babulal v. Madhya Bharat AIR 1955 MB 75
Bihari Chowdhary v. State of Bihar AIR 1984 SC 1043
B. L. Shukla v. Fatmabai Ismail AIR 1976 Guj. 29
Director of Rationing v. Corporation of Calcutta AIR 1960 SC 1355
India v. Jubbi AIR 1968 SC 360
India v. Satish Chandra AIR 1980 SC 601
Kerela v. The Midland Rubber & Produce Co AIR 1971 Ker 228
Province of Bombay v. Municipal Corporation of the City of Bombay
AIR 1947 PC 34
Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta
AIR 1967 SC 997
S. P Gupta v. President of India AIR 1982 SC 149
State of Bihar v. Kasturbhai Lalbhai AIR 1978 Pat. 76
State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493
State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865
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