Privileges and Immunities to Administration in Suits

Introduction

You know government can enter into contracts. Government can start some business. It mean government can sue other people, or you can sue the government.

Before you initiate a legal proceedings against government, or even after legal proceedings are initiated, there are some relaxations to government.(OK, we will use Government/Administration as per our discretion interchangeably in this post, but they will mean the same).

So, it might happen that to prove something you may need a document or evidence, but government may be given exemption to produce evidence in that regard.

Let's take one example.  General law is that burden of proof is on prosecution. Meaning, the one who accuses other  needs to prove the crime/offence by other. But when government accuses you of Sedition, you have to prove your innocence, burden of proof is on YOU. This is scary, as many times government in power just accuses people of sedition who opposes their ideas/policies, and put opponents in jail and asking them to prove their innocence. This is one example of relaxation to government. (They can accuse and relax..!!)

Such relaxations to government also called Privileges and Immunities by Law people. (You need to use heavy words, it's law study after all).

In this post we are going to discuss such privileges and immunities to administration or governments.

We will discuss below immunities/privileges to administration

• Immunities from operation of Law
• Privileges under Civil Procedure Code
• Privileges under Evidence Act
• Relaxation in Limitation of Suits.
• Immunities from promissory estoppel
• Funny and Sad thing in Prevention of Corruption Act.

Immunities from Operation of Law

"King can do no wrong". Top most person like Queen/King/President/Prime Minister are kept outside the purview of Law.

In England, Queen is not bound by Law. However if Law has express provision than Queen also has to abide by it, then Law will apply to queen.

In India, if you check Indian Penal Code, it excludes Presidents/Governors from Criminal Proceedings.

Here is one recent example. Kalyan Singh, ex UP Chief Minister is accused in 500 year old Babri Masjid demolition. When He was governor of Rajasthan he was exempted from proceedings.

Only Presidents/Governor have immunities from operation of Law in India. Generally the executives such as Governments/Minsters/Bureaucrats are bound by the Law, unless expressly given immunities by Law.

Privileges under Civil Procedure Code

Suits by or against the government are discussed in Section 79,80 and Order 27 of the Civil Procedure Code.

If you check that procedure (Check it once please!!) you will discover that government officers are having some immunities.

Section 80 states that if you want to file a suit against government, you have to give notice to the government about such suit.

You cannot directly go and file a suit against government. You have to give notice and wait for two months. This is kind of privilege given to government. The reason for such privilege is administrative convenience. It might be possible that once you give notice, government/administration will sort out your concern.

If direct filing is allowed, there will be too many suits. Some evil people may also file fixitious suits to trouble the government. To avoid all this there is a provision of notice.

However such privilege is not applicable in below cases

1. Suit against Statutory Corporation like (LIC/RBI/SBI/ or XYZ..I)
2. Suit in Claim tribunal under Motor Vehicle Act
3. Write Petitions against government/officers
4. When if suit not filed, grave injustice will be suffered by party.

Also there is proviso that if you show court that matter is extremely urgent, then also you can file a suit without giving a notice.

Privileges under the evidence Act.

You know you need to produce the document if you want to prove something. You also need to produce the document if Court asks you to produce. Can Court compel the production of document to government?

This is where government/administration get some relaxations.

First, let us discuss the position in England. Old position was that Crown/Queen had privilege to withhold the document. Court also took the same position that it's Crown's privilege whether to disclose the document or not in court. It was held in Duncon Vs Camel Laird Co Ltd (1942 AC 624).  In 1942 Court was of the opinion that crown is sole judge to decide whether document is privilege or not. However they change this position in Conway Vs Rimmer (1968 AC 910). Court said "It's not you who is going to decide whether document is privilege, Its the power of the Court".

We have similar privilege for State. There are below privilege to government in Evidence Act

1. 1) If government had not published any document, then they cannot compel to produce that document, except with permission of government or officer in charge of that particular department. (Section 123). However to claim immunity under this section, matters must be related to public affair and not disclosing the document should be in the public interest. For example Police is carrying out some investigation, and report is not published yet, then court cannot compel the police to submit the report.
2. 2) Official communication made by officer is also privileged under Section 124 of Indian Evidence Act. However to claim the privilege the officer have to convince court that public interest will be harmed if such document is compelled to be produced.
3. 3) Section 162 talks about production of document. When document is asked to be produced in Court a party can take objection. The government generally takes the ground of public interest for not producing the document.

On many occasion, government used to take a ground of public interest for not producing a document. Government started taking undue advantages of these privileges. So court stepped in to do something about it.

In SP Gupta Vs Union of India (AIR 1982, SC 149), government did not want to produce the document. But Court overturned their request and asked to produce a document. Government interference caused removal of additional judge on some ground. There was communication in this regard between Law Minister and Chief Justice. Court asked to produce the communication to ascertain whether removal of judge was on valid ground.

Justice Bhagwati was a judge in this case. He expressed faith in idea of open government.(In Democracy, government is by people, why then government don't release the information to people). J Bhagwati stated

 Where a society has chosen to accept democracy as it's creedal faith, it is elementary that citizen ought to know what their government is doing. The citizen's right to know facts, the true facts, about the administration of the country is thus one of the pillars of democratic state and this is why the demand for openness in the government is increasing growing in different part of the world. If process and functioning of government are kept shrouded in secrecy and hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse of authority

Relaxation in Limitation of Suits

Limitation Act provides certain time frames to file an application, suits or appeal. After the expiry of certain time you cannot file a suit in court.

Government is given relaxation in respect of time. If it is mandatory to file a suit within 12 years, you cannot file it after 12 years. If you want to file a suit, you have apply for condonation of delay and give some reason. However government is not required to give any reason and they have been given relaxation in limitation of suit.

This relaxation is based on the maxim "nullum tempus occurit regi" meaning no time runs against the king.

Immunity From promissory estoppel

 Take this example. Government promises tax exemption if Foreign companies establish Phone Manufacturing Company. XYZ Ltd establish manufacturing company. Government then imposes a tax. Can XYZ Ltd go against the government in court for fulfillment of promise the government made ? Is government immune from estoppel ?

Answer is "it depends".

In certain scenario, government is immune from promissory estoppel, however in other cases government is not immune.

Latest judgements states that immunity from promissory estoppel is not absolute.

In Union of India Vs Anglo (Indo) Afgan Agencies Ltd (AIR 1968 SC 718), the doctrine of promissory estoppel was invoked against India. In this case government promised that exported can import raw material for the amount which the export is made. So If you make 5 Lakh of export, you can import 5 Lakh of raw material from outside. However government gave license to import only 2 Lakh Rs. Court asked government to keep it's promise.

In Century Spinning and Manufacturing Company Ltd Vs Ulhasnagar Municipal Council (AIR 1971, SC 1021)  Court invoked the doctrine against the government.

As we said earlier, the doctrine of promissory estoppel cannot be invoked in certain cases. These are as below

1. Public Interest : If public interest is going to suffer because of governments act due to promissory estoppel, government can claim immunity from promissory estoppel.( Government actually should not make promise that will harm public interest)
2. Act contrary to Law : Government cannot be forced to do something which would be unlawful at later stage, even though they had promised something earlier.
3. Ultra vires promises or representation : When officer had no authority to promise something, but he promised, then such government is not bound by such promises.
4. Fraud : When promises by government are obtained by fraud, government cannot be forced to act on such promises

Privilege in Prevention of Corruption Act

This is really sad and also funny. If you want to prosecute some public officer for corruption, you have to get the permission from government.

So if you blame government of corruption and want to prosecute them, you have to take permission from Them..!! LOL

Why would somebody would give the permission to prosecute against himself. haha.

Conclusion

Government is powerful. Actually very very powerful. Adding to that power there are additional immunities and privileges enjoyed by government in legal proceedings. These privileges and immunities are needed for administrative convenience. However sometime government abuses these privileges

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