THE law has developed unforeseen strength to correct a wayward state and punish its minions, the ministers. The law on both is distinct and separate, albeit related.
Dread of punishment personally is a real check on arbitrary and corrupt ministers. Sir William Wade, a great jurist, deserves high praise for developing the tort of “misfeasance in public office” in his classic Administrative Law. It includes “malicious abuse of power, deliberate maladministration and perhaps also other unlawful acts causing injury”. For all such acts the offender, whether a minister or a civil servant, is liable. If human rights have been violated the victim is entitled to “just compensation”.
The prime minister of Quebec was ordered to pay damages personally by the Supreme Court of Canada in 1959. Acting on instructions which he had no right whatever to give, the Quebec Liquor Commission revoked the licence of a person who had aroused the prime minister’s ire because he had provided bail for fellow members of a sect whose activities were offensive to the government. The fact that the premier believed that he was acting in the best interests of Quebec was irrelevant, the court ruled. Nor was proof of malice necessary. The issue simply was usurpation of power for which he had to compensate the citizen whom he had wronged.
The law goes further to say that in such cases exemplary damages should be awarded. As Lord Devlin put it, for “oppressive, arbitrary or unconstitutional action by the servants of the government”, exemplary damages must be awarded. The servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. The award will curb “the arbitrary and outrageous use of executive power” and serve “a useful purpose in vindicating the strength of the law”.
In 1980, the Privy Council followed this ruling and awarded exemplary damages in a case concerning abuse of the power of preventive detention. Following the proclamation of a state of emergency in the Caribbean state of St Christopher-Nevis-Anguilla, the governor promulgated the emergency powers regulations and thus conferred on himself the power to detain a person without trial.
The state’s court ruled that the regulations were unconstitutional. The detainee sued successfully for damages for false imprisonment. The Privy Council confirmed on appeal that the regulations were unconstitutional and the detention was unjustified. The state’s appeal court had raised the $5,000 in damages awarded by the trial court to $18,000. The Privy Council upheld the increase and explicitly approved Lord Devlin’s dicta.
The Supreme Court of India developed the law further, gradually though. In 1993 it noted that “payment of damages by the state entails loss on the victim, who pays the taxes.”
Accordingly when “a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”
In 1996 the Supreme Court of India categorically declared that a minister “is in a position of a trustee in respect of the public property under his charge and discretion”. Its elaborate judgement was based on Sir Wade’s dicta and English and Indian cases. Satish Sharma, a former pilot, rose to be central minister of state for petroleum and natural gas. He made 15 allotments of retail outlets for petrol pumps improperly for patently wrong considerations. They were made in a stereotyped manner. The allottees, who had approached him directly, were relations of his personal staff, sons of ministers or relations of officials.
“All these allotments are wholly arbitrary, nepotistic and are motivated by extraneous considerations,” the court held, adding that Mr Sharma “has betrayed the trust reposed in him by the people under the constitution. It is high time that public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants.” The allotments were quashed and Mr Sharma was ordered “to pay a sum of [Rs5 million] as exemplary damages to the government exchequer”. The Central Bureau of Investigation was directed to register a case against him for investigation in the light of the findings of fact which the court had arrived at from official records.
Shortly thereafter, the Supreme Court had to deal with another such scam. Sheila Kaul, minister for urban development, had allotted shops to her own relatives, personal staff, domestic servants and family friends. The allotments were cancelled and she was ordered to pay to the government Rs6m as exemplary damages. The court laid down an important principle of law in this case. If there is abuse of power or trust, the fact that there is no injury to anyone is irrelevant.
Mr Sharma, who had not even cared to file an affidavit in his case, sought a review which another bench granted three years later on grounds manifestly wrong. The order for payment of Rs5m was set aside. The ruling that the absence of loss to any individual was irrelevant was ignored. The law on misfeasance in public office was not only misstated but ridiculed as “a philosophical concept” which “reflects the image of virtue in its highest conceivable perfection”.
Suffice it to say this ruling caused much disquiet while the one it overruled commands respect. It is certain to hold sway.
The writer is an author and lawyer.