1. Introduction
There are some general principles which nullify the tortious liability of a person. As we have already discussed in preceding chapters that an action may fail if the plaintiff fails to prove the essential ingredients of a tort. But even after proving the ingredients of a tort, a plaintiff will fail, if the defendant justifies his tort on the basis of principles which nullifies tortious liability.
2.
Q.
If a person suffers a harm voluntarily then it does not constitute a legal injury and is not actionable. The maxim volenti non fit injuria signifies this meaning. A man cannot make an excuse for an injury which he has received in fulfilment of his desire or willingly accepted to take the risk. If the person has consented either expressly or impliedly then he can't sue for a tort. Volenti non fit injuria can also be translated as 'the injury voluntarily suffered is not fit for action'. So, no breach of legal right can be said to be committed against the person who is a willing party or who has given his consent for the harm/injury to be received in consequence of the furtherance of his act. Such injury is not actionable. There are basic points which constitute the maxim volenti non fit injuria which the defendant requires to prove for justifying his tort. They are:
At first instance, the plaintiff should have the knowledge about the nature of act/work and the risk involved in performing the act. If, he lacks the knowledge about the nature of work and quantum of risk what it will be when the work is performed; it will be presumed that he had no knowledge of the risk. The knowledge of the plaintiff is significant here and if it is missing, the defence of volenti non fit injuria cannot be availed by the defendant.
Besides the knowledge of the nature of act as well as extent or risk in an act, free consent to run the risk is also necessary for the plaintiff. The consent must be voluntarily and with free will. Consent given by the plaintiff under coercion or force, fraud and mistake can't be treated as free consent.
It was observed in the case R. v. Donovan, (1934) 2 KB 49, that no person can give license to another person to commit a crime. Winfield1 has said, "certainly it cannot be true that the maxim is excluded whenever the act constitutes a crime as well as a tort, for every assault is criminal, and so are some libels, and yet it is possible, by assent, to negative tortious liability for many kinds of assault and libel."
Consent given by minors or insane persons are generally not taken as consent since both are considered immature as far as knowledge is concerned and in such cases, consent by their guardians are taken as sufficient.
In many cases, a number of duties are being imposed on the employer. When there is a breach of statutory duty by the employer, he is liable even when the employee has given the consent. Hence, consent to a breach of statutory duty is not acknowledged. In the case Baddeley v. Earl Granville, (1887) 19 QBD 647. Will J. has stated-"the law will not permit an employer to make it a term of his servant's contract that the latter shall connive at a breach of his master's statutory obligations which is not intended for his benefit only but also for the benefits of others".
Now, it has become a well-established rule that the defence of volenti non fit injuria is not applicable to an action where there is a breach of statutory duty otherwise known as statutory negligence.
Q.
A man cannot complain of harm to which he has already given his consent with full knowledge and free will. It also applies to the intentional act which would be otherwise tortious. Some cases are discussed as below:
In this case, the defendant had kept spring guns in a wood on his ground to protect the game. The plaintiff had full knowledge about placement of spring guns trespassed on the defendant's land and got injured. The plaintiff brought a suit against the defendant that he had exceeded the right of private defence. It was the observation of the court that although defendant was exceeded his right of private defence he was not liable since the plaintiff had taken the risk of trespassing even after knowing that the spring gun was placed on defendant's land. The court observed that he having wilfully courted the danger himself his case fell within the maxim volenti non fit injuria.
In this case, the defendant had placed a spring gun in the garden since flowers from his garden used to be stolen more often. One day, a pea-hen belonging to the plaintiff entered into defendant's garden. The plaintiff to catch his fowl got alighted the wall of the garden unaware of the spring gun placed there. The plaintiff got injured and the defendant was sued. The court gave the verdict in favour of plaintiff since he had no knowledge about the gun and the maxim volenti non fit injuria was not applicable here.
Mrs. Ma Thin, wife of Maung Sein, died after giving birth to a child. An unqualified mid-wife attended Ma Thin during delivery of the child. Ma Thin, knowing completely about her qualification consented to appoint her as mid-wife. It was held that the maxim volenti non fit injuria is applied here as the plaintiff had taken the risk to appoint unqualified midwife with full knowledge hence, not entitled for damages.
Abovementioned cases are the examples of expressed consent.
There may also be cases where the risk can be taken by his implied consent. Cases of implied consent are as follows:
The defendant had a brewery, where the plaintiff was working. The plaintiff tugged at a board with a view to remove it from the top of a boiling vat to which the board served as a lid. Suddenly, the lid came off and fell into a cooling vat, which was sunk in the floor about three feet away from the boiling vat. The fencing was not proper, the plaintiff fell into the boiling vat and got severely injured. It was observed that the plaintiff had full knowledge of the danger. Majority of judges was of the view that the action was not maintainable. Bowen L.J. remarked..... 'it is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier must be knowledge against such circumstances as lead necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not scienti non fit injuria but volenti. It is plain that mere knowledge may not be a conclusive defence. There may be perception of the existence of the danger without comprehension of the risk as where the workman is of imperfect intelligence or though he knows the danger, remains imperfectly informed to its nature and extent. There may again be concurrent facts which justify the enquiry whether the risk, though known, was really encountered voluntarily."
In the instant case, the defendant did not provide a conducive place of working i.e., a place free of risk, hence he was negligent. But, the court did not find the defendant as guilty of negligence and held that the whole risk was voluntarily incurred.
Smith was working under Baker & Sons and the place where he was working a crane often carrying heavy stones used to move over his head. He used to drill the rock for cutting purpose. Employer as well as the employee both had knowledge, that the stones being carried overhead may fall sometime, but no warning was given to Smith of the movement at which any particular jibbing commenced.
In this case, the principles laid by Bowen L.J., in the case Thomas v. Quartermaine, was not extended. The House of Lords held that the defendants were liable. Lord Herschell observed "where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done to him, even though the cause from which he suffers might give to others a right of action." He further added-"where a risk to the employed, which may or may not result in injury has been created or enhanced by the negligence of the employer, does by mere continuance in service, knowledge of the risk preclude the employed, if he suffers from such negligence, from recovering in respect of his employer's breach of duty? I cannot assent to the proposition that the maxim, volenti non fit injuria, applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong." Then his Lordship referred to the case of Thomas v. Quartermaine, and disapproved its decision by stating, "if the effect of the judgment be that the mere fact that the plaintiff, after he knew the condition of the premises, continued to work and did not quit his employment, afforded his employer an answer to the action, even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decision."
This case has laid down the rule of implied consent where the plaintiff has taken the risk of performing the job in dangerous condition, he has consented for incurring the risk of harm, although the defendant did not take care to minimize the risk as much as possible.
In this case, Dann decided to board the car of Mr. Hamilton, Ms. Dann while entering the vehicle noticed that Mr. Hamilton was under the influence of liquor. The car met with an accident and Ms. Dann got injured. This accident occurred due to negligence of Hamilton. Now, the question was whether the maxim volenti non fit injuria was applicable or not? Asquith J. was of the view that this maxim did not apply or plaintiff could recover damages. Mere knowledge of this fact that Hamilton was drunk. Ms. Dann did not give her consent to do the job negligently or absolved the driver from liability for, any subsequent negligence on his part whereby the plaintiff might suffer harm..... There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an exploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim volenti non fit injuria would apply, for in the present case I find as a fact that the driver's degree of intoxication fell short of this degree. I therefore, conclude that the defence fails, and the claim succeeds.
The defendant was performing the job of breaking the cast iron and for that purpose he used to drop it from a height of 35 feet. In this process, iron pieces flew for few yards. A screen was put up to stop the flying iron pieces. A warning was also issued to the persons nearby, but the workmen working at a distance were not warned about the danger to go on working that they might receive injury also. The plaintiff was standing at about 80 feet distance and was hit by the iron piece and got injured. It was found that the defendants did not take sufficient care and were guilty of committing negligence. The defendant took the plea of the maxim volenti non fit injuria but it was not applied in the case. The court observed-"the defendant can successfully plead the maxim only when he proves that the person injured knew of the danger, appreciated it and voluntarily took the risk. That the defendant had some knowledge of the danger is not sufficient. A man cannot be said to have voluntarily undertaken a risk the extent of which he does not appreciate."
4.
There are exceptions to the application of the maxim volenti non fit injuria. Some cases are discussed as follows:
A passenger fell down from the railway car due to negligence of Railway Company. To search his friend; the fellow passenger got down as the train stopped. But, he fell down since it was darkness and got injured. Cardozo, J., held the Railway Company liable and observed-"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore those reactions in tracing conduct to its consequences. It recognizes them as normal. The wrong that imperils life is a wrong to the imperiled victim. It is wrong also to the rescuer......The risk of rescue if only, it is not wanton, is born of the occasion."
Here, the servant of defendant left a two-horse van unattended in a crowded street. The horses ran away. The plaintiff, a policeman was on duty and he was in the police station. He saw that a woman and many children were on the street. Seeing them in grave danger that they might be run over by these strong horses. The plaintiff came out of his police station and stopped the horses. But, in doing so he got injured. Greer L.J. accepted the American rule, as stated by Dr. Goodhart and observed that the defendant was liable. Simultaneously, he held that, "the rescuer's act need not be instinctive in order to be reasonable for the man who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse."
The rescuer should act reasonably and not with emotions.
5.
Q.
As it is clear from the heading that what is not in hand of human being, we usually call that it is done by God. Flood, rainfall, frost, drought, wind, hurricane, earthquake etc., are the acts of nature. All these acts, most of the time cannot be anticipated and what would be its magnitude and its consequences. Cases related to Act of God or Vis Major are discussed below:
A cinema advertising board was placed on the roof of the defendant which fell down and injured the plaintiff. Plaintiff brought a suit against the defendant and contended that the board fell due to storm of unusual severity. But, it was observed that during the season of monsoon a storm of this magnitude is not uncommon. The defendant had not ensured or foresee that the fixing of banner on such a height is strong enough to face the pressure of storm during monsoon season. The Calcutta High Court held that such a storm cannot be said to be so unexpected that no human foresight could reasonably be expected to anticipate it and cannot be regarded as 'vis major' or 'act of God'. Hence, the suit was allowed and the defendant was found negligent. Before the act of God can be admitted the defendant could have taken reasonable care and done all that what he was bound to do.
In this case, the State had constructed a reservoir for the supply of drinking water for the villagers of Nipani. But the construction was not completed and the over-flow channel linked with reservoir was partially constructed. Land and crops were damaged due to flow of water resulted from rain. The plaintiff filed the suit for damages. The State resisted the suit that it was the act of God. But, the court rejected the defence and observed - "Assuming an act of God such as flood wholly unprecedented, the damage in such a case results not from the act of man in that he failed to provide a channel sufficient to meet the contingency of the act of God. But for the act of man there would have been no damage from the act of God."
When a thing escapes from someone's possession due to an unprecedented and unanticipated act of nature and it is when practically impossible for the owner to prevent it, then the defence of the act of God applies and in such case the plaintiff can't recover the damages. In this case, Nichols was the surveyor of some country bridges for Chesire. An estate containing three lakes of ornamental water fed by natural stream passing through the estate were owned by Marsland. An unprecedented and heavy downpour caused the lakes to overflow after breaking the embankments of the lakes and the waves carried away four bridges of the country.
Nichols, the plaintiff brought an action for damages on the plea that the defendant was negligent. Bramwell, J., observed-"everyone understands that a storm is supernatural in one sense may properly, like earthquake in this country, be called the act of God or vis major. No doubt, it was not the act of God or vis major in the sense that it was physically impossible to resist it but in the sense that it was practically impossible to do so. Had the banks been twice as strong, or, if that would not do, ten times, and ten times as high, and they were ten times as wide, the mischief might not have happened, but these are not practical conditions. They are such as, to enforce them, would prevent the reasonable use of property in the way most beneficial to the community....... I am of the opinion that the defendant is not liable." Mellish L.J., upheld the decision of the Court of Exchequer and said-"there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it would not reasonably have been anticipated; although if it had been anticipated, it might have been prevented, and it seems to us in substance a finding that the escape of water was owing to the act of God."
The act of God or vis major can also be explained mathematically as follows:1
(i) Unprecedented + Unforeseen + Irresistible = Act of God
(As it has been discussed in this Chapter in the cases Nichols v. Marsland; Mahindranath v. Mathura Dass)
(ii) Unprecedented + Foreseen + Irresistible + Act of God
(Nichols v. Marsland case)
(iii) Precedented + Unforeseen + Irresistible = Act of God
(Greenock Corporation case)
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1. S.P. Singh, Law of Tort, 4th Edn., p. 46.
(iv) Precedented + Foreseen + Irresistible = Act of God
(Greenock Corporation and Mahindranath cases)
Sometimes, it becomes physically unavoidable to check an accident, it is called as 'Inevitable Accident'. Pollock1 has defined it as-"the accident which is not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take."1
We can also say that an inevitable accident is that accident which could not have been prevented by the reasonable care, caution and skill.
In this case, the defendant was travelling in his car with his dog. At one place, after parking the car, he got down but left the dog in his car and shut the door. Dog was quiet and docile. But the dog was jumping inside the car and creating all the nuisances and smashed the glass of window. One of the glass pieces as a splinter penetrated one eye of the plaintiff who was passing across. The plaintiff brought an action against the defendant for damages. Lord Dunedin did not find the defendant responsible for the accident as he observed-"this is such an extremely unlikely event that I do not think any reasonable man could be convicted of negligence, if he did not take into account the possibility of such an occurrence and provide against it either by not leaving the dog in the car or by tying it up so that it could not reach the window. People must guard against reasonable probabilities, but they are not bound against fantastic possibilities."
In this case, there were two strangers who took lift in a jeep. Somehow, the jeep in which they were travelling, the bolt which was fixing the right front wheel of the jeep in the axle got loosened and the wheel flew away from the axle. The jeep somersaulted and the passengers (strangers) got injured and one of them died thereafter. It was the view of the court that this was an accident, as there was no evidence to show that the defect was a patent one and could have been defected by check up on regular basis. In this case, the defendant was not held liable.
7.
Q.
Mistake means realization of wrong by oneself. When one commits an error in understanding or when one understands or perceives wrongly. Thus, a mistake may be committed by a person and it may be of two kinds: (i) Mistake of law and (ii) Mistake of fact.
(i) Mistake of law.-It has got generally no defence of civil liability for the rule, ignorantia juris non excusat which applies equally to the law of torts as to other branches of law.
(ii) Mistake of fact.-It has got no ground of exemption from liability in tort. The defendant may be held liable in tort, although his mistake is based on reasonable and honest belief.
e.g.-in the case Ransom v. Kitner, (1888) 31 All App 241, the defendant killed the plaintiff's dog while he was hunting for wolves. The dog of plaintiff had striking resemblance to a wolf. The defendant was held liable for his act.
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1. Pollock, Law of Tort, 15th Edn., p. 97.
When a person has committed some act by mistake, it can't be said that he has committed a wrongful act. If a plaintiff moves an action with malice or wrongful motive then in such circumstances, mistake may be taken as a good defence.
Sometime, even an innocent person faces prosecution, but the prosecutor incurs no liability unless he has acted both maliciously as well as without reasonable cause. That's why a mistaken arrest of an innocent person on suspicion of there being felony is not actionable; if the felony has actually been committed, and there is a reasonable ground for believing that the person arrested is guilty of it.
8.
Q.
Sometimes, intentional injury to a person or property may be caused yet the defendant may not be held liable if he pleads the defence of 'necessity'. The defence of 'necessity' originates from the maxim 'Salus populi supreme lex' which says the welfare of the people is the supreme law. This maxim has got the implied assent of every member of the society, that the welfare of the community comes first compared to individual's welfare i.e., the welfare of community is paramount and for that individual's property, liberty and life shall, under certain circumstances be placed in jeopardy or even sacrificed for public welfare.
In the year, 1507, Kingsmill, J.1 observed-"that the violation of another man's rights could be justified on the ground that the act was necessary to the common well, as in case of fire to take goods out of a house to save them, to pull down a house to save other houses and in time of war to enter another man's land to make a bulwark in defence of the king and the realm."
There are some cases in which decision has been given under the defence of necessity-
(a) Deway v. White, 1827 M&M 56.-destruction of a building made ruinous by fire to prevent its collapse into the highway.
(b) Saltetre case, (1605) 12 Rep 120.-here a house was pulled down which was on fire to prevent the spread of fire to the property of others.
(c) Kirk v. Gregory, (1876) 1 Ex D 55.-in this case A died in a state of delirium tremens. His servants were feasting and drinking in the house. B, sister-in-law of A, removed the jewellery of A from the room where he lay dead and kept it in another room for the sake of safety. But, it was her mistaken belief and the Jwellery got stolen from that room. The court remarked, 'it is a defence that the act was done for the preservation or protection of the property of the person, provided there was reasonable necessity for the act'. B was held liable to A's executor for trespass to the jewellery because there was no proof that her interference was reasonably necessary.
Whenever there is some probability of danger, it is human instinct to save himself or his property and in course of saving his own, he uses force also. Every person has right to defend himself and his property or possession against an unlawful harm.
We will discuss here about private defence under following headings.
Q.
To use reasonable force in self-defence against an unlawful force is right of every person. But, the term 'reasonable' has to be decided. Whether the used force in self-defence was proportionate to the danger anticipated. Reasonable also depends on the facts and circumstances. The force used may not be reasonable (i) if, it is not in proportion to the apparent urgency of the situation, or (ii) there is no necessity for the use of force. Salmond1 has explained it as - 'in order that it may be deemed reasonable within the meaning of this rule, it is not enough that the force was not more than necessary for the purpose in hand. For even though not more than necessary it may be unreasonably disproportionate to the nature if the evil sought to be avoided'.
If A attacks B with his fist and in return B takes out his sword and cuts A's hand then B here can't take the plea of use of reasonable force to defend himself. One cannot lawfully defend himself against a trivial assault by inflicting death or grievous bodily injury even though the assaults cannot be prevented in any other way.
Another example - if A attacks B with a deadly weapon then B is justified in using a deadly weapon to protect himself.
But, one more question arises here that - can a person use reasonable force in defending another person against unlawful force? Pollock, Winfield and Clerk and Lindsell have similar opinion - there is no doubt that the right extends to the protection of one's spouse and family, and the weight of opinion includes defence of the servant by the master, or vice versa.
The principle is same here as in the matter of defence of person. A person is entitled to protect his movable/immovable property with the use of reasonable force if the time demands during any danger.
If A fences off his land in anticipation of flood coming to his way and if flood comes and turns towards A's neighbour and damages his property then here A can't be held responsible although his neighbour has got injured by A's act.
Here, we can say that a person will be held liable if he, while protecting his property uses unreasonable force or takes unreasonable measures.
Related cases are discussed as follows:
Here, the defendant had kept a spring gun in his garden, since flowers were oftenly stolen from his garden. The plaintiff, a boy whose fowl had strayed away, jumped into defendant's garden to search his missing fowl. He had no knowledge about the gun there and he got injured. The court observed here that the defendant was liable since he had exceeded the right of private defence to his property.
In this case, the plaintiff was moving towards his own house at night and when he was passing through defendant's land he got electrocuted by a live wire, put up by the defendant to stop the trespasser. Here, the defendant was held liable since he had exceeded the right of private defence to his property.
Here, the plaintiff as well as the defendant, both were the members of a Cricket Club Committee. The defendant was a captain during a match and the plaintiff was a spectator. The defendant asked the plaintiff to substitute one of the players and the latter agreed upon. But, the defendant annoyed him by saying to put off his coat. The plaintiff neither removed the garment nor left the field. The defendant then directed to push him out forcibly from the field. The plaintiff filed a suit against the defendant for damages for assault. The defendant's plea was that he was in possession of the ground but this plea was not taken since the possession of the ground was in the committee of the club. The defendant was held liable.
The defendant was going somewhere in his carriage, driven by two horses, on road. A vicious dog started following the carriage and repeatedly attacked the horses and came into defendant's compound. The defendant tried to prevent him but of no avail. Finally, the defendant took out the spear and attacked the dog and the dog got injured and later on died due to severe injury. On a suit filed by the plaintiff, the court observed that the defendant was justified in his action since he was tried his level best to scare off the dog but in spite of his attempts, he could not succeed and then only resorted for final blow.
The Parliament enacts the law at the same time, it has also the power to reverse any principle of common law. Any act or omission tortious under the common law may be specifically made legal by a statute and in that respect, statutory authority is a defence.
In this case, Municipality of Ahmedabad demolished a wall of plaintiff under their statutory powers. The roof of plaintiff also collapsed in the process. On the points raised by the plaintiff, the court held that no suit will lie against the defendant, as they have carried out their duty under statutory powers although the plaintiff has suffered injury. The power (statutory) has been exercised with judgment and caution.
The plaintiff loaded 1000 canisters of mustard oil in a van belonging to Eastern Railways from Gaya to be sent to Purulia, West Bengal. As soon as, it reached Purulia, the local Municipal Commissioner seized the consignment, under the Bihar and Orissa Municipal Act, section 287. The seizure was to check the quality of the oil whether it was good or bad. After seizure of oil, it was loaded in a scavenger's truck by mehtars (sweepers).
The plaintiff brought a suit against the defendant on the ground that it has caused damages to their finances as well as reputation (branded name). The Court observed that the defendant in order to prevent beri-beri a disease within the municipality acted in haste and that the action of the municipality, if not actuated by malice or a result of conspiracy was certainly unreasonable and negligent. Justice Varma observed-"if a person is exercising his rights under a statute he is not liable unless it is proved that he acted unreasonably and negligently."
Q.
Some powers which are conferred by the legislature for a particular thing to be done regardless of whether it inflicts an injury upon another person, it is called as absolute, mandatory or imperative authority. In case of harm, it is being covered by the authority e.g., to construct the railway line, there may be need of acquiring private land. But, in such cases the land owner will be suitably compensated. But, running a train without causing noise or vibration is impossible and for such complaint there is no remedy.
If, the legislature has authorized certain act and the authority given is imperative, no action would lie against the person who has the statutory authority to do the act, provided it is done without negligence. This statutory authority not only extends to the act itself, but to all its necessary consequences.
In cases viz. Nirmal Chandra Sanyal v. Municipal Commissioner of Patna, MANU/WB/0264/1936 : AIR 1936 Cal 707 and Bhogilal v. Ahmedabad Municipality, MANU/WB/0264/1936 : AIR 1936 Cal 707, it was held-"When the Legislature has authorized an act, it must be deemed also to have authorized by necessary implication all inevitable results of that act."
During the observation of Muharram, the Shia Mohammedans contended that they had right to take out tazia of 27 feet in height during procession in Amroha by certain fixed routes. There were electric wires in the route of procession which was hurdle in taking out tazia of 27 feet in height. It was contention of the plaintiff that the defendant must raise the electric wire to such a height that could not interfere with tazia.
It was the observation of the court that when according to the true construction of a statute the legislature has authorized certain act and the authority given is merely permissive and not imperative, the legislature must be held to have intended that the execution of work permitted must be done in such a way as not to prejudice the common law rights of others. Iqbal Ahmad, J. observed-"there is nothing on the record of the present case from which it could be argued that the fixing of the wires at the height of 27 feet was an impossibility or that some other arrangements could not have been done so that the inherent right of the plaintiff was not to be interfered with......" and the appeal was allowed.
11.
Q.
The sovereign power always rests with the State. The State has right to enact a law to protect its citizens and itself. Sovereign powers fall outside the province of municipal law. When the supreme i.e., sovereign power is exercised by the State, it is called as 'Act of State'. The act of State in the present context means under the authority of government to a foreign State or a subject of a foreign State who is not residing in India, at the time of injury done to him.
The essence of the act of State is that State being sovereign cannot be sued in its own courts (i.e. Municipal courts) for any injury done/inflicted to a foreign State or its subject.
'The transactions of independent States between each other are governed by other laws than those which municipal courts administer. Such courts have neither the means of doing what is right nor the power of enforcing any decisions they make.'
In this case, the Government's contention was that to appoint or dismiss a Government servant was an act of State and hence, the court had no jurisdiction. But Batty J. outrightly rejected the contention of the Government defined the phrase 'act of State' as - it is a term which is not applicable to an action of the sovereign towards its own subjects in its own territory in time of peace. The expression is usually applied to an action of the sovereign towards foreign subjects, whether it be in time of peace. It would, however, be a misnomer to call the administrative acts of a sovereign against its own subjects in time of peace as acts of State and to claim immunity in respect of them although they may amount to a contract in the ordinary sense between the sovereign and his subjects.
Some more features about 'Act of State':
· it operates extra territorially,
· it doesn't operate against its own subjects,
· it operates against aliens and foreign subjects having no protection of municipal law.
A very pertinent question arises here that whether a person can be treated as a subject of that State which is de facto control of another State in which he resides? Can the action against that person by the State, having de facto control, be treated as act of State. We can try to find the answers of above questions in following case.
The defendant held rights of properties which was granted by the Nawab of erstwhile State of Junagarh. After passing of the Independence Act, 1947, Junagarh became a sovereign but unlike other States did not accede to India. The Nawab left for Pakistan and there was chaos in the State. The administration of Junagarh was taken over by the Government of India on 9th November, 1947 at the request of Nawab's Council. The Government of India appointed an administrator to administer the State.
In 1948, the people of the State through a referendum voted in favour of accession of State to India.
On 21st January, 1949, Junagarh State was merged into United States of Saurashtra.
So, the control of Junagarh with the Government of India was de facto from 9-11-1947 to 20-1-1949, and the control was de jure from 21-1-1949 onwards. The Administrator appointed by Government of India cancelled the grants on 18th November, 1947 made by the Nawab to the respondents.
Now, the question before the court was - whether the action of the Administrator was justified i.e., was it within the ambit of 'act of State'? The Supreme Court observed that the orders of the administrator arose out of and during an act of State over which the municipal courts had no jurisdiction. Das J. observed that even though de facto control of Junagarh State was taken over by the Government of India on 9th November, 1947 but there was no de jure change of sovereignty until January 20, 1949. The respondents were aliens against whom the orders of the administrator were an act of State.
But it has to be kept in mind that where the action has been taken against the subject after taking over de jure control of the State, it will not amount to act of State.
12.
In Anderson v. Gorrie, (1859) 1 QB 668 (671), it was observed that if a judge or a judicial officer acts within his jurisdiction then no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office. The rule of judicial immunity from liability is based on the principle for the benefit of the people with a view that judges/judicial officers discharge their duties without fear of consequences.
There is also remedy if the judicial error has been committed in the form of appeal to higher Court and the judicial corruption can be removed through criminal prosecution.
The above rule of English Law has been extended to judicial officers in India by the Judicial Officer's Protection Act, 1850. Section 1 of the Act provides:
"No Judge, Magistrates, justice of peace, collector or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of......"
Under this Act, the officer must be acting judicially to claim the protection and that mere fact of his being a Judge, Magistrate, or other judicial officer, does not protect him as he might be acting in his executive capacity.
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