Indian Constitution does not immune the state from any type of liability against its citizens. But, it gives the power to the citizens of India to sue ‘Government of India’ or ‘states’ for their respective affairs. For this purpose, Article 300 has been enacted in the Constitution.
Art. 300(1) of the Constitution
“The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.”
Elements of the Article
This Article consists of three parts, namely,
(1) the first part provides for the form and the cause-title in a suit and says that a State may sue or be sued by the name of the State, and
(2) that a State may sue or be sued in relation to its affairs in like cases as the corresponding Provinces or the corresponding Indian State might have sued or been sued if this Constitution had not been enacted; and
(3) that the second part is subject to any provisions which may be made by an Act of the Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution.
The first part of Art. 300, as already indicated, deals with the nomenclature of the parties to a suit or proceeding but the second part defines the extent of liability by the use of the words “in the like cases” and refers back for the determination of such cases to the legal position before the enactment of the Constitution.
Power of Sue before Constitution
Government of India Act, 1935
That legal position is indicated in the Government of India Act, 1935, s. 176(1) which is in these words:
“The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in council might have sued or been sued if this Act had not been passed.”
It will be noticed that the provisions of Art. 300(1) and s. 176(1) are mutatis mutandis substantially the same.
Government of India Act, 1915
Section 176(1) refers back to the legal position as it obtained before the enactment of that Act, that is to say, as it emerged on the enactment of s. 32 of the Government of India Act, 1915 Sub-ss. (1) and (2), which only are relevant for our present purposes, are in these words:
“(1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council, as a body corporate.
(2) Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed.”
As compared to the terms of Art. 300, it will be noticed that part (1) of that Article corresponds to sub-s. (1) of s. 32 above, part (2) roughly, though not exactly, corresponds to sub-s. (2), and part (3) of the Article, as indicated above, does not find a place in s. 32.
Sub-section (2) of s. 32 has specific reference to “remedies”, and has provided that the remedies against the Secretary of State in Council shall be the same as against the East India Company, if the Government of India Act of 1858, and the Government of India Act, 1915, had not been passed.
Government of India Act of 1858
We need to further back to the Act 21 & 22 Victoria Ch. CVI, entitled “An Act for the better Government of India.” As this Act transferred the Government of India to Her Majesty, it had to make provisions for succession of power and authority, rights and liabilities.
Section 65 of the Act of 1858 is in these terms:
“The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company;
and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company.”
It will thus be seen that by the chain of enactments, beginning with the Act of 1858 and ending with the Constitution, the word “shall and may have and take the same suits, remedies and proceedings” in s. 65 above, by incorporation, apply the Government of a State to the same extent, as they applied to the East India Company.