The relationship between individuals who enforce and uphold laws plays a role
in the realm of justice. We are referring to judges, who work in courtrooms to
ensure fairness and government officials, who're responsible for the functioning
of the government. In situations where mistakes or abuses of power occur
questions regarding accountability often arise.
The concept of state culpability is quite relevant here. It simply means that
the government takes some responsibility for the actions of its officials.
However, this raises questions about how we distinguish between situations where
the government is to blame and those where individuals are at fault. What rules
and regulations guide these decisions?
Given that this involves issues of fairness and accountability it's a topic.
When someone, in a position of authority does something justice needs to be
served. However, we should also be cautious not to discourage people from taking
on positions out of fear that they will perpetually be held responsible.
Throughout the course of political development, over centuries the issues
related to judicial officers, executive power and accountability for the actions
of public servants have remained constant. To truly grasp the significance of
this matter it is necessary to delve into its underpinnings.
In societies and monarchies immense authority was vested in kings and their
appointed officials. The actions of these individuals were often seen as
reflections of the ruler's intentions with emphasis on modern notions of
accountability. The rule of law held sway.
The idea of state liability started to gain prominence when absolute monarchies
gave way to systems in the 18th centuries. This transition marked the division
of powers and the creation of written constitutions that defined boundaries for
government authority. It was during this era that legal scholars and
philosophers such as John Locke and Montesquieu began advocating for a
government that's more balanced and accountable.
The East India Company was given authority over India by the British Parliament
through the Act of 1833 (3 and 4 William IV Ch. 85). The Act stated that the
territories were held by the Company in trust for the benefit of His Majesty,
his heirs, and his successors. Following the British Crown's takeover of the
Indian government in 1858, the Government of India Act, 1858 (Act 21 and 22 Vic.
Ch. 106) was passed. Section 65 of the Act stated that the Government's
liability in this regard would be equal to the Company's.
The middle of the century marked a time. It was during the Nuremberg Trials
after World War II that a groundbreaking concept emerged. The idea that
individuals, government officials in positions of power could be held
accountable for actions deemed illegal according to international law regardless
of their official capacity. This development represented a step forward in
ensuring that public servants are responsible for their actions.
These historical backgrounds now provide a context for conversations about the
accountability of judges and officials in the branch. The challenge lies in
striking a balance between preserving the courts independence ensuring
government operations and holding those in positions of authority for their
actions. This journey, through history underscores the importance of addressing
public servant accountability equitably within a legal and political system.
It is a legal doctrine whereby a sovereign or state cannot commit a legal
wrong and is immune from civil suit or criminal prosecution, strictly speaking
in modern texts in its own courts. State immunity is a similar, stronger
doctrine that applies to foreign courts.
Sovereign functions of the state can be defined as those functions where the
state is not answerable before the court of law for their performance. These
functions are mainly concerned about the defense of the country, maintenance of
the armed forces of the country, and maintenance of peace in the territory.
In case of N. Nagendra Rao Vs. State of AP
2 some tests were given which
categories sovereign functions, ""One of the tests to determine if the
legislative or executive function is sovereign in nature is, whether the State
is answerable for such actions in courts of law. For instance, acts such as
defense of the country, raising (the) armed forces and maintaining it, making
peace or war, foreign affairs, power to acquire and retain territory, are
functions which are indicative of external sovereignty and are political in
Also, in case of Oriental Steam Navigation v. Secretary
to the State of India,
it was held that, there was a great and clear distinction between acts done by
the public servants in the delegated exercise of sovereign powers and acts done
by them in the conduct of other activities. The Court held that East India
Company was not sovereign, drew distinction between sovereign acts in respect of
which State was not liable and the other category i.e., non-sovereign in respect
of which the Secretary of the State was made liable.
During the period in Europe known as the system an interesting concept called
sovereign immunity came into existence. This concept granted the king with
authority. Placed him above the law making it impossible to sue or hold him
accountable for any misconduct committed by his government or representatives.
The underlying principle behind this immunity was essentially that "the king can
never be in the wrong.
As time went by and societies transitioned towards constitutional regimes,
sovereign immunity underwent changes to adapt to evolving environments. Of
immunity enjoyed by monarchs, a more limited form of immunity emerged as a means
to prevent abuse of power by making governments responsible for their actions.
Over time, international legal developments have also influenced the evolution
of sovereign immunity, making it a global phenomenon. The idea that governments
should be held responsible for human rights violations originated with the
development of international human rights law and the creation of international
courts. The idea of total sovereign immunity was called into question by this.
Depending on the jurisdiction the concept of immunity can take on forms, in
today's world. Several countries, such as the US have chosen to waive their
immunity allowing individuals to file lawsuits against the government in
circumstances. However, to avoid overwhelming the state with litigation these
waivers often come with limitations and conditions.
Furthermore, international law has evolved to provide exceptions to sovereign
immunity, for types of actions. This includes cases involving human rights
abuses or actions conducted outside of a government's capacity. As a result,
international courts now handle lawsuits that accuse governments of violating
law and human rights.
The evolution of immunity demonstrates the balance between maintaining efficient
government functioning and ensuring accountability for governmental actions.
Initially complete immunity was the norm. Over time this concept has adapted to
meet the requirements of legal systems that value fairness and justice. While
still safeguarding state operations it now allows individuals to seek redress,
for any misconduct committed by the government.
Judicial Misconduct And Accountability
Any unethical, inappropriate, or inappropriate action by a judge while carrying
out their official duties is referred to as judicial misconduct. This
misbehavior can manifest in a number of ways, including as prejudice,
discrimination, nepotism, power abuse, or even illegal activity. Misconduct does
happen, even though judges are supposed to act impartially, professionally, and
in line with established norms of behavior.
The Judicial Officers' Protection Act, 1850:
The Judicial Officers' Protection Act, 1850 contains only one section and is
aimed at providing protection to the judicial officers acting in good faith in
their judicial capacity.
No Judge, Magistrate, Justice of the 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; and no officer of any Court or other person, bound to execute the
lawful warrants or orders of any such Judge, Magistrate, Justice of Peace,
Collector or other person acting judicially shall be liable to be sued in any
Civil Court, for the execution of any warrant or order, which he would be bound
to execute, if within the jurisdiction of the person issuing the same.
But sometimes accountability in the judiciary is essential for several reasons:
There are several mechanisms in place to ensure judicial accountability:
- Ensuring Public Trust; The foundation of a society relies on the public's trust in the system. It is crucial for people to have confidence in judges' ability to uphold the law and act fairly. Instances of misconduct can undermine this trust. Lead to skepticism regarding the justice system.
- Promoting Responsibility; Holding judges accountable serves as a deterrent, for any wrongdoing. When judges know that their actions have consequences it helps keep them on the path.
- Protecting Individual Rights; To safeguard the rights of those who may be affected by a judge's misconduct it is important to establish a system that ensures accountability. Without checks and balances, people could end up with judgments that are prejudiced or biased against them.
In jurisdictions there are boards dedicated to examining complaints against
judges. These boards consist of both legal experts, who can offer
recommendations ranging from counselling to the removal of a judge from their
State Liability for Human Rights Violations
Judicial Review: When a higher court determines that a lower court judge has violated the law or professional standards of behavior, they have the authority to review and overturn the decision. This acts as a check on judges' conduct, in all aspects of their work.
Legislative Impeachment: In cases where judges engage in misconduct, legislatures may have the power to remove them from office. This requires meeting a burden of proof and is often considered as a last resort.
Public Scrutiny: Holding judges accountable can also be achieved through media attention and public opinion. Instances of malpractice that become widely known can trigger outrage leading to investigations and disciplinary actions being taken.
State liability for human rights abuses refers to the responsibility of a
government or state organization when they commit actions or fail to act in ways
that violate rights. Such violations encompass practices, detentions, acts of
torture extrajudicial killings and limitations on freedom of speech. Recognizing
state accountability acknowledges that the state holds a legal duty to protect
the rights of its citizens as the supreme authority, within its boundaries.
In the case of State of Rajasthan v. Vidyawati
, the Supreme Court of India has
taken perhaps the first step towards a proper solution of the problem of the
vicarious liability of the government in torts, the court held that "" The
Secretary of State-in-Council of India is liable for the damages occasioned by
the negligence of servants in the service of Government if the negligence is
such as would render an ordinary employer liable."
In Davidson v. Walker
the action was brought against the government, represented
by a nominal defendant, for an alleged nuisance caused by the maintenance of a
police-station and lock-up, and for so negligently constructing the same as to
allow noises to proceed therefrom to the disturbance and annoyance of the
plaintiff and his family. The government could not rely on any statute
authorizing their acts, and it was in evidence that the plaintiff suffered
special damage, and that by better construction the nuisance could be very
greatly, if not altogether, abated.
Numerous global conventions and treaties have been established to address human
rights violations. Examples include the Universal Declaration of Human Rights (UDHR)
and regional conventions, like the European Conventions on Human Rights. These
agreements outline standards for protecting rights and establish mechanisms for
holding states that breach them.
Instances of human rights abuses are adjudicated by tribunals and organizations
such as the Inter American Court of Human Rights and the International Court of
Justice. Countries that are parties to these agreements can be summoned before
these institutions, where they may face consequences for violating rights and be
required to provide compensation.
Challenges and complexities:
While the concept of holding states, for human rights abuses is theoretically
sound implementing it can pose challenges.
Importance of State Liability:
- Establishing Causation: Proving a link between state actions or inaction and human rights violations can be arduous, particularly when multiple parties are involved.
- State Secrets Defense: Governments may resort to invoking state secrets or national security concerns to shield conduct from scrutiny.
- Ensuring Accountability: It can be difficult to hold individuals accountable for violating rights, as they often manage to evade consequences and enjoy impunity.
State liability for human rights violation is essential for following reasons:
- Deterrence: Holding states accountable helps prevent human rights violations by both state and non-state actors.
- Justice: It provides victims with a means to seek redress for the harm they have suffered and obtain justice.
- Preventing Recurrence: When accountability is enforced, states are compelled to take measures to prevent violations, fostering a culture that upholds rights.
Aim is to ensure that governments uphold the rights of their citizens and take
responsibility for any human rights abuses. States are held to standards of
justice and fairness because they can be held accountable when violations occur.
An important factor to consider is the issue of misconduct. It is crucial that
judges carry out their duties in an unbiased manner as they play a role in the
proper functioning of our judicial system. To maintain trust, in the courts we
have established accountability measures such as review boards and disciplinary
Throughout history there has been a shift in the power once held by
monarchs�known as immunity. Leaders are no longer shielded from facing any
consequences. Governments can now be held responsible for their actions;
however, this is done cautiously to strike a balance, between seeking justice
and maintaining stability.
Ultimately accountability is rooted in the principles of justice, fairness and
trust. It revolves around upholding the rule of law, which is fundamental to
- R.K. Bangia, Law Of Torts
- Ratanlal And Dhirajlal
- S.P. Singh, Law Of Torts
- Protection Of Judicial Officers
- Acceptance of vicarious liability by government for the tortious acts of government servants�The Responsible State.
- The Legal Liability of the Executive
- Company Directors and Tortious Liability