“Suits By Or Against The Governments And Public Officials In Their Official

Capacity”

By: Muskan Agarwal

L.LB

03FL21BLL084
 Abstract
Throughout history, the essential process of promptly accessing legal courts for seeking relief
and justice has not always existed. This historical reality underscores the value of the
procedure today, despite its imperfections.

Since ancient times, societies have traditionally placed trust in an authority believed to be
infallible and just, often epitomized by the principle that "the King can do no wrong."
However, societal norms and values evolve over time. As societies progressed, they
transitioned to the idea of a social contract where elected representatives made decisions on
behalf of the people. This shift gave rise to the concept of a welfare state, which remains
prevalent today.

Today, when the Indian government and its administrative system appear inadequate in
effectively managing the welfare of the country's population, it is the legal system that steps
in to provide assistance.

This research article explores the rights and procedures involved in lawsuits brought against
or by the government and public officials of the State. The author aims to assess the
effectiveness of laws and the administration of justice in situations where the government, as
a party, typically holds a significant advantage due to its access to extensive resources.
Introduction to the Law relating to Suits by or against the Government and
Public Officials in India

The Civil Procedure Code, 1908 (referred to as "The CPC/Code"), was originally enacted
during the British colonial era. At that time, it included provisions regarding procedures for
lawsuits involving the government. However, these provisions were quite limited, especially
concerning suits against the East India Company when it acted in a governmental capacity,
until India gained independence and adopted its Constitution.

It was with the adoption of the Indian Constitution that Article 300 enabled the Government
of India and State/Province Governments to sue and be sued, subject to any specific
provisions made by Parliament or State Legislations. This constitutional provision clarified
and expanded the scope of CPC Sections 79 to 82 and Order XXVII, allowing for more
comprehensive implementation and understanding of procedures involving governmental
entities in legal matters.

The language used in Sections 79 and 80 of the Civil Procedure Code (CPC) is crucial and
clear, reflecting their distinct procedural and substantive nature, respectively.

Section 79 establishes the framework for cases where the Central or State Government, or the
Railways, are either plaintiffs or respondents. It defines the parties involved and addresses the
jurisdiction of courts in such matters. It's important to note that territorial jurisdiction applies
specifically to these cases, as established by judicial precedent, and the general provisions
related to jurisdiction under Sections 18, 19, and 20 of the CPC do not typically apply.

On the other hand, Section 80 deals substantively with the requirement for prior notice before
suing the government. It can be subdivided into four parts: compliance with the notice
requirement, the specific contents of the notice to be served, the consequences of non-
compliance with this notice requirement, and the possibility of waiving such compliance.

Together, these provisions outline the rights, liabilities, duties, and procedural steps to be
followed by aggrieved parties, the Central and State Governments, their officials, and
recognized government pleaders in legal disputes brought before the courts. This framework
ensures clarity and proper procedure in cases involving governmental entities in India.

1
Secretary of State v. Rustom Khan, AIR 1930 ALL 225
2
Jehangir v. Secretary of State, AIR 1958 SC 425
3
Dominion of India v. RCKC Nath & Co., AIR 1954 SC 455
The objective of having the notice served by the aggrieved party to the government is made
mandatory4 to be followed, to reduce litigation on the expense of public time and money via
settling down the claim within the period of two months. Two months do not mean 60 days;
the calculation needs to be made month-wise5.

Neither dthe sections nor the Order elaborates upon the contents of such notice, however, on
reading Section 80 with its objective, the Apex Court has interpreted that the contents of the
notice must include essential information such as name, address, description, cause of action
and relief prayed, which dhelp the government not only identify the aggrieved person but also
make attempts to settle the dispute, if legitimate6.

If there is non-compliance of the rule, the plaint of the aggrieved party is bound to be rejected
under Order VII, Rule 11, unless it qualifies for the exception for immediate relief or the
government itself waives such notice period7. However, the waiver of the period is not
absolutely at the behest of the government, it is mandated to be reviewed by the courts. The
purpose of scrutiny is to avoid any prospective stalling of the proceedings based on no notice
period granted to prepare properly for the matter8.

In the context of serving notice to the government or railway secretary, it must be done
personally, left at their office, or sent via registered post. This ensures that the concerned
authorities are properly informed of legal actions against them.

Order XXVII of the Civil Procedure Code delineates the specific procedures governing suits
involving the government. According to this order, the plaint or written submission must be
signed by an authorized government pleader and verified by an official knowledgeable about
the case's facts. The order recognizes the government pleader as the representative of the
government, empowering them to act, apply, and appear on behalf of the government in legal
proceedings.

This procedural framework is designed to ensure that the government and its officials have
adequate time to prepare for legal matters without hindering their ability to carry out their
official functions. It strikes a balance between providing sufficient notice and allowing
governmental entities to continue their operations effectively despite ongoing legal
proceedings.

4
Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627
5
Laxmi Narain v. State, AIR 1977 SC 73
6
Union of India v. Shankar Stores, AIR 1980 SC 318
7
Dhina Singh v. Union of India, AIR 1958 SC 274
8
Commissioner of Taxes v. Golak Nath, AIR 1979 SC 10
 Analysis of the Procedure

● Efficacy of the Law

The objective of establishing procedures for suits involving the government and public
officials is primarily aimed at serving public interest and advancing justice. These procedures
are intended to ensure fair and transparent resolution of disputes where governmental entities
are involved, thereby upholding accountability and maintaining the rule of law.

However, despite these noble intentions, there are significant shortcomings within the legal
framework. These lacunae can hinder the timely and effective resolution of cases involving
the government. Some of the common issues include:

(a) In many instances, the notice required under Section 80 of the Civil Procedure
Code goes unanswered by the government or public officials. Instead of using this
time to investigate and resolve the matter, there are concerns that the government
may use this period to avoid liability or manipulate facts and evidence. This
undermines the intended objective of the legal provisions, which is to ensure
accountability and justice.
Even in cases where the government does not tamper with evidence, the aggrieved
party often remains unaware of the status of their claim during this waiting period.
This lack of clarity creates uncertainty and prolongs the legal process. Unlike
cases involving private individuals, disputes with the government typically require
more time and resources from the aggrieved party to navigate these uncertainties
and delays.Addressing these issues requires mechanisms to ensure timely and
substantive responses to legal notices from the government, as well as
transparency in the consideration of claims. Improving communication and
accountability within governmental processes can help mitigate these challenges
and uphold the principles of fairness and efficiency in legal proceedings involving
public entities.

9
Section 81, The Civil Procedure Code, 1908.
10
Section 82, The Civil Procedure Code, 1908.
 ● Scope of Authority of the Courts

It is viewed that the courts have been intentionally bestowed with wide discretion to analyses
under the said provisions. They interpret the scope of –

(a) ‘Acts spurporting to be in official capacity’ – It was the Apex Court of India that
held the said phrase shall not include any duties and actions outside the sphere of
public official’s authority11. Even though the scope has been laid down via the
precedent, the terms continue to gain large judicial discretion of the courts based
on each case’s facts and circumstances.
(b) Leave of the Court is to be sorted by the government/public officials while
wavering of the notices compliance. The right to waiver is a constructive step
towards concluding the legal proceedings. However, considering the scrutiny to be
conducted by the courts and the possibility of denial of such leave, the purpose of
the provision is failed, by the wide discretion of the court.
(c) The wide discretion issue while sorting leave of the court for waiver is common
with sorting leave for immediate relief by the aggrieved party in the court.
(d) Before amendment, the courts had wide discretion over rejecting of plaint on the
grounds of technical error in the notice, which the government took constructive
effects of. This discretion was removed via amending section 8012 to include sub-
clause (2) and (3). The amendment was brought to signify that justice cannot be
denied merely on technical grounds.
(e) The wide discret ion of the courts is also reflected as an order under section 80 is
non-appealable in nature. To ensure justice and not sarbitrariness, the order
decidedcan be made subject to revision.

Comparative Analysis between India, US and UK

It is important that the Law Commission of India13 noted that provision similar to Section 80
does not exist in any other country around the globe, except in India. The reason is to bring
‘equity’ between the State and its citizens.

11
Samanthalal Koti v. Pothuri Subbiah, AIR 1918 SC 62
12
Section 80, The CPC (Amendment) Act, 1976
13
Law Commission of India, 27th Report, Pg. 21-22
Article III of the American Constitution does provide for US Courts to decide upon
‘controversies’ wherein United States is a party. But the same is not an authority to sue. The
U.S. Congress over the years has evolved the law to determine the scope within which the
American citizens are allowed to sue the U.S. Government. Initially only matters related to
the federal treasury, but later matters relating to money, torts including negligent behavior of
the public officials were included14, within the said scope.

The law continues to evolve w.r.t. sovereign immunity related acts performed by the US
Government/Officials and whether they come within the scope of being able to be sued by
the citizens. This is because the U S Congress has made an express distinction between
theacts of the US Public Officials and the acts of the US Government.

Unlike India, the sUS does not have a mandate for joining the Government as a party whilst
the public officials are being sued for acts committed in their official capacity. In India, there
exists no distinction between the public officials and the government in cases relating to
henious acts of the public official, performed in official capacity. The government pays
compensation to the aggrieved in such a cases15.

The United Kingdom and the Indian system are similar. However, since the UK does not
have a written constitution, the procedure and the scope of suing the UK Government or the
Crown keeps evolving through precedents. However, the UK had adopted the Doctrine of
State Acts, wherein any act so done by the State for a foreign entity as per International Law
cannot be brought to question in domestic courts.

14
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
15
Chief Conservator of Forests, Government of A.P. v. Collector, AIR 2003 SC 1805
 sSWOT Analysis of the Indian Law

Strengths Weakness

One of the significant strengths of the Indeed, while the Civil Procedure Code
procedure outlined in the Civil Procedure (CPC) mandates efforts for settlement and
Code (CPC) is its emphasis on the mandated provides a framework for resolving disputes,
efforts for settlement of disputes both before its elongated procedural nature on paper can
and during legal proceedings. This provision be considered a weakness. This elongation
plays a crucial role in several ways refers to the complex and detailed steps that
parties must follow to initiate and progress
through legal proceedings.
Opportunities Threats

The scope granted by the Constitution of During the practical implementation of the
India and upheld by judicial precedents legal procedures involving the government or
allows any citizen to hold the government public officials, the provision granting two
accountable, which significantly promotes months' time to respond poses a significant
democracy and accountability within the challenge for citizens seeking justice. This
State. This framework ensures that timeframe allows the government, which
governmental actions are subject to scrutiny typically has ample resources at its disposal,
and can be challenged through legal to prepare its case or response.
channels, thereby fostering transparency and
responsiveness to the public.

Conclusion

Based on the analysis provided, the author concludes that the Civil Procedure Code (CPC)
indeed establishes procedures for suing or being sued by the government and public officials
in their official capacity. These provisions are specific to the Indian legal system and
contribute significantly to the administration of justice.
However, the author highlights a major concern regarding delays not only in the procedural
aspects but also in the implementation of these procedures, particularly concerning the
delivery of justice. These delays disproportionately affect parties other than the government
and public officials.
Key points of the conclusion include:
Procedural Specificity: The CPC's provisions regarding government and public officials are
tailored to the Indian legal context and are integral to the fair administration of justice.
Delay Concerns: Delays in both procedural aspects (such as responses to notices) and the
overall implementation of legal proceedings are identified as significant issues. These delays
can hinder timely resolution of disputes and contribute to prolonged uncertainty and costs for
parties challenging government actions.
Impact on Non-Government Parties: The author underscores that delays primarily affect
parties not associated with the government or public officials. This unequal burden
underscores the need for reforms to expedite legal processes involving governmental entities.
In conclusion, while recognizing the value of the CPC's provisions in the Indian legal system,
the author calls for measures to address delays and improve efficiency in the implementation
of these procedures. This would ensure that justice is delivered promptly and fairly to all
parties involved in legal disputes, thereby enhancing the credibility and effectiveness of the
legal system as a whole.
 Suggestions
The author acknowledges the Constitution and the Civil Procedure Code for providing a
broad framework to settle disputes and ensure accountability by the government and public
officials. However, the author emphasizes the need for both the executive and the judiciary to
act promptly and ensure swift delivery of justice.
Prompt action from the executive branch is crucial to address legal notices and resolve
disputes in a timely manner. This includes conducting thorough investigations, providing
substantive responses, and taking necessary steps to settle claims or rectify grievances
efficiently.
Similarly, the judiciary plays a pivotal role in ensuring that legal proceedings are conducted
expeditiously. This involves prioritizing cases involving government entities, interpreting
laws liberally to uphold fairness and equity, and delivering judgments promptly to reduce
uncertainty and mitigate costs for aggrieved parties.
By emphasizing prompt action and swift delivery of justice, both the executive and the
judiciary can contribute to effective dispute resolution and uphold the principles of
accountability and justice in governance. This approach not only benefits individual litigants
but also enhances public trust in the legal system's ability to address grievances fairly and
efficiently.

The Way Forward

The author suggests that the judiciary should adopt a broad interpretation of legal provisions
to benefit aggrieved parties in cases involving the government. This approach does not
advocate for bias against the government but emphasizes sensitivity towards procedural
fairness and equity.
By interpreting provisions liberally, the judiciary can ensure that procedural hurdles do not
unfairly disadvantage individuals or entities challenging governmental actions. This could
involve:
Interpreting Notice Requirements: Ensuring that technicalities in serving notices do not
unduly restrict access to justice for aggrieved parties.
Jurisdictional Clarity: Clarifying jurisdictional issues to facilitate timely resolution of
disputes involving governmental entities.
Timely Adjudication: Promoting efficiency in the legal process to prevent prolonged
uncertainty and costs for aggrieved parties.
Ensuring Accountability: Holding the government accountable by scrutinizing claims and
evidence impartially, without prejudice but with a commitment to fair procedure.
Promoting Transparency: Upholding transparency in governmental actions and decisions,
which is crucial for maintaining public trust in the justice system.
In essence, while maintaining neutrality, the judiciary can play a critical role in upholding
equity by interpreting laws in a manner that promotes fairness and protects the rights of
individuals or entities challenging governmental actions. This approach aligns with the
broader goals of justice and rule of law in a democratic society.
 Research/Scholar Research Work

Case Laws
● Gopal Singh v. Swaran Singh & Ors., (2019) 2 SCC 177
● Secretary of State v. Rustom Khan , AIR 1930 ALL 225
● Jehangir v. Secretary of State, AIR 1958 SC 425
● Dominion of India v. RCKC Nath & Co., AIR 1954 SC 455
● Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627
● Laxmi Narain v. State, AIR 1977 SC 73
● Union of India v. Shankar Stores, AIR 1980 SC 318
● Dhina Singh v. Union of India, AIR 1958 SC 274
● Commissioner of Taxes v. Golak Nath, AIR 1979 SC 10
● Samanthalal Koti v. Pothuri Subbiah, AIR 1918 SC 62
● Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
● Chief Conservator of Forests, Government of A.P. v. Collector, AIR 2003 SC 1805

Research Papers
● Praveen Kumar & Udayavani, Suits Brought By or Against Government or Public Officers Under Civil
Procedure Code, 1908, International Journal of Pure and Applied Mathematics, Volume 120 No. 5
2018, 2557-2569 ISSN: 1314-3395, url: http://www.acadpubl.eu/hub/ (accessed on January 30, 2020)

Law Commission of India Reports

Statutes/Legal Provisions
● The Indian Civil Procedure Code, 1908
● The CPC (Amendment) Act, 1976
● The CPC (Amendment) Act, 2015

Others
● The Constitution of India, 1950
● The Constitution of the United States, 1787