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Report No. 60

10.3. Effect of growth of democracy.-

With the growth of democratic institutions and the realisation of the need to give adequate protection to the citizen even against governmental activities, a movement for giving more adequate and better defined remedies against the State gained ground in various countries. The Crown Proceedings Act, 1947, in England, and the Federal Tort Claims Act, in the United States of America, illustrate the growing trend to make the Government liable for various kinds of illegal acts. Reference may also be made to the Law Commission's Report1 on State liability in Tort. These developments are not to be viewed in isolation, but as a part of the process of the gradual erosion of the prerogative of the executive. Because of the growing number of welfare activities of the State, the matter has assumed great practical importance.

The question of the position of the State in regard to statutes,' is a fact of the above subject, and is one of steadily increasing importance. As is often pointed out, the problem is one of a determining how far the prerogative of the State, is consistent with the need for full liability of the State, particularly because every day the State engages in activities comparable with those of the citizens. The common law presumption, that the State is not bound by a statute except by express mention or by necessary implication, is no longer justifiable. It may be that this presumption is supported by the old positivist theory which regarded law as a command issued by superior to an inferior. If so, it is out of date note.

1. 1st Report of the Law Commission (State liability in tort).

General Clauses Act, 1897 Back

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