Hari Banji Analysis

Reference given in the judgment of P&O Steam Navigation case to as alleged immunity for sovereign function and illustration of such immunity is confined to what is usually called Act of state led in to different interpretations by different courts. In Nobin Charider Dey .v. Secretary of State and Secretary of State .v. Hari Banji, according to the interpretation given in, the liability of the state can be determined on the basis of the function of the state as sovereign and non-sovereign .In the case of sovereign function, state would not be liable but in the case of non-sovereign, state would be liable. According to the decision in Hari Banji the immunity of the state should be limited to the 'Act of state'. Thus in Hari Banji, the court compared
Even though the judiciary decries the principle to express its helplessness as it is still haunted by this old doctrine. The law being the mechanism to regulate the behavior of the people it is necessary to make it as a predictable working system. The Law Commission in its report recommended to modify the existing law and introduced the bill to amend the law to make the state liable like any other ordinary person. It asked why the government should not be placed in the same position like that of a private employer subject to the same rights and duties imposed by the state. After evaluating similar laws existing in different countries, the government introduced a bill in the Parliament on August 31, 1965 but it lapsed and this was reintroduced in 1967, 1969. If there is a failure on the part of parliament to introduce reforms through legislation it would appear quite feasible for the Supreme Court in its present face of activism to overrule the lingering old principle and to do away with the so called immunity for sovereign functions. It is necessary to go through the similar laws existing in U.K & USA and in
In France they developed their law and procedure and established special courts, suited to the present day world. They categorized the service as service fault and personal fault and those are dealt with in different courts and the liability also varies according to the nature of fault. If it is difficult to separate the service fault and personal fault, it is dealt with in Cumul. The liability of the state and officials vary according to the responsibility for the damage committed by the officials and the state. The social responsibility of the state arises out of the various activities. For example certain activities of the state create risk which results in loss or injury of an individual. Risk arising from dangerous operations, risk in the course of employment, risk arising out of judicial decisions and risk missing out of legislative acts and risk in case of statutory acts. The role of Conseil d E'tat is commendable which is administered by experts, well trained judges It ensure proper mechanism for the needs of public administration. It is therefore submitted that the legislative intervention for judicial correction to make the state completely liable in torts in India should not be further