VICTIMLESS TORTS

Tort law has evolved a lot in India over the years but still it happens to be un-codified and is dependent

much on the common law principles. Since India is a common law country, it accepts the widely applied

laws in England from where it derived its basic roots for torts. There is no denying the fact that till now the

tort law in India suffers from many lacunas ranging from codification of law to generality of tort law. One

of such lacunae is the concept of Victimless torts.

The term is neither widely accepted by scholars in the field, nor is it duly recognized in India. Essentially,

torts involve invasion of individual interests directly but there are many such wrongs which do not qualify

for direct invasion but are against public property or public funds and therefore termed as victimless torts1.

There is a lot of controversy over the word ‘victimless torts’ as to constitute a tort there has to be a legal

injury caused to an individual on the basis of which the person approaches the court and demands damages.

If there is no victim per say, how can the wrong qualify to be a tort. This leads us to instances where there

is no victim but a wrong is indeed done. Let's say public drunkenness; vagrancy; various sexual acts usually

involving consenting adults (fornication, adultery, bigamy, incest, sodomy, homosexuality, and

prostitution); obscenity; pornography; drug offenses; abortion and gambling. These involve no complaining

party other than the police and also such acts take place in private and do not victimize any third party.

Although there is no direct harm to any individual, there is an incidental invasion of their interests and thus

it would only be fair that they have a cause of action in such cases.

If we see with the perspective of a wrong constituting tort, misfeasance in public office qualifies to be a

victimless tort as there is no particular individual whose rights have been directly affected but still it

qualifies to be a tort.

EVOLUTION

1
Introduction to Law of Torts, B.B. Pande.
Misfeasance is called a peculiar tort for various reasons. The only people who can commit Misfeasance are

those holding public office and it is therefore regarded as Common Law’s only Public Tort. As of now, the

normal tort law principles and procedures are not applied in cases of Victimless Torts and thus, it can be

called an exception to a fundamental principle given by A V Dicey regarding holding the government to

the same liability as private individuals2.

In the past few decades, four leading cases have laid down the foundation of and basic structure of

misfeasance in public office as a tort. These are Northern Territory v Mengel3, Garrett v Attorney General4,

Three Rivers District Council v Bank of England5 and Estate of Odhavji v Woodhouse.

Black’s Law Dictionary defines misfeasance as, “The improper performance of some act which a man may

lawfully do.” Thus, when a public office holder carries out his duty in a way that is not lawful and affects

the public at large, he is said to have committed misfeasance. Corruption cases in India are not scant and a

lot of them would qualify as. misfeasance.

The elements of the tort of misfeasance in public office are:

1. The defendant must be the holder of a public office.

2. The defendant must have exercised a power that was an incident of the office.

3. Such exercise of power must have been invalid or unlawful.

4. The defendant must have acted in bad faith i.e. either acted maliciously with the intent of causing injury

to a person or acted knowingly without lawful authority.

Lord Steyn, who delivered the leading opinion, explained that the rationale for the tort is that“in a legal

system based on the rule of law executive or administrative power ‘may be exercised only for the public

good’ and not for ulterior and improper purposes.”8 In other words, it is necessary to uphold the moral

obligations the public officers owe to the public. They should not misuse their power and every action

should be directed at achieving public good.

MENTAL ELEMENT IN THE TORT OF MISFEASANCE IN PUBLIC OFFICE

2
X (Minors) v Bedforshire County Council [1995] 2 AC 633
The role of malice in tort law varies between different torts. Malice in the competitive market and the

intention to cause harm when one holds the public office are very different. The very essence is a

competitive market is gaining advantage over the others. However, public officials are expected and

supposed to serve the people and to act in public interest, not in their own interests3.

Anyone who is in a position to exercise power over someone else must do so morally and well

within its scope. There should be no arbitrariness or illegality attached to their exercise of power.

In case there is, such people should be punished4. The tort of misfeasance in Public office exists

in order to prevent the public officials from misusing their powers and thus causing harm to the

citizens.

The Indian scenario

Corruption in India is widely prevalent and there is severe lack of transparency. The people

are dissatisfied with the levels of corruption that exist and there is no efficient way of

handling it. There have been cases in which the Indian Courts have recognised misfeasance

as a tort. However, these are few and far between. Thus, the evolution of a widely accepted

framework of victimless torts is all the more important in India.

The Supreme Court in Lucknow Development Authority v M. K. Gupta13 recognised public

misfeasance as a tort. Justice R. M. Sahai, in his judgement referred to the following:

“Even where there is no ministerial duty as above, and even where no recognised tort such as

trespass, nuisance, or negligence is committed, public authorities or officers may be liable in

damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been

3
L H Hoffmann, "Rookes v Barnard" (1965) 81 Law Quarterly Review 116 at 138.
4
Rookes v Barnard [1964] AC 1129 at 1226
called misfeasance in public office, and which includes malicious abuse of power, deliberate

maladministration, and perhaps also other unlawful acts causing injury.”5

He further noted that, there is vast discretion in the actions of administrative authority and this

often protects the officers from being held liable. However, when malafide exercise of discretion

is found, the officers are no longer protected and can be held liable for mental and physical

harassment. Also, as and when a liability arises against a public office holder, compensation should

be paid through public funds immediately.

Inidian cases

The most prominent case of public misfeasance in India is Shivsagar Tiwari v Union of India.20

This case decided the validity of the allotment of 52 shops made by then Minister of Urban and

Housing Development. It was referred to as a Housing Scam and the CBI was asked to look into

the matter. The main issues raised in this case was whether the preferential allotment of the shops

made by Mrs. Kaul, the minister of urban and housing development was illegal and wrongful in

nature and whether she could be held tortuously liable. It was challenged that the preferential

allotment was violative of Article 14 of the Indian Constitution and hence exemplary damages

must be awarded as for public injury. In the review petition, it was held that, arbitrariness was

exercised by the defendant and this was acknowledged and found fit to fall under the category of

a tort. Compensation was seen as a mere recourse for the case in question and not as a stepping

towards the development of victimless torts as a branch of Tort Law in India.

Another important case that discusses public misfeasance is Common Cause, a Registered
Society v Union of India.21 In this case the central minister for petroleum allocated 15
petroleum outlets at his discretion. This act was challenged by a writ petition in the Supreme

5
Administrative Law, William Wade
Court of India under article 32. After considering the various files and evidences the court
held that an executive head of the concerned department is elected by the people and he
therefore holds their trust. He is expected to deal with peoples’ property in a just and fair
21 (1996) 6 SC 530
manner. He is obliged to act most cautiously and morally and not to breach the trust vested in
him by the people.
It was further held that Capt. Satish Sharma in his capacity as a Minister for Petroleum and
Natural Gas purposely acted in a completely unjust and arbitrary manner. There was
complete certainty about the fact that Capt. Satish Sharma knew that all the allottees were
either relatives of his staff or relatives of various ministers and so on. Thus, it was held that
the allotments made were mala fide and could not be sustained. They were entirely vitiated
and liable to be set aside.
Emphasizing on the need for transparency in, and proper guidelines for, allotments, the Court
referred to Article 14 of the Indian Constitution and held that discretionary power which has
scope of being exercised arbitrarily is not permitted under the aforesaid Article. It allows
room for some level of reasonable and rational classification but it does not permit the
arbitrary selection of people falling in one and the same category. Thus, the Court said, there
is need of a transparent and objective procedure which shall allow reasonable, fair and
nonarbitrary
selection of people belonging to the same category.
The court further asked the government to take over the petrol pumps and asked the minister
to compensate the petitioner by paying Rs. 50,000 and he was liable under ‘Misfeasance of
Public office.’
Clearly, the stand of Indian Courts is still not settled in the matter of this victimless tort and
there is need of clarification and rigid principles to govern the same. However, it would be
wrong to say that India has not recognised it as a tort. Tortious action lies against public
officials in cases of their wrongful conduct.

Scope in India and Recent Developments

So far, the paper has examined how misfeasance in public office qualifies as a tort and how it has

evolved and been applied in Indian cases. It is evident that there is much room for its development

and further evolution as a tort in India. Cases of corruption are not scant in India and if a way is

found to hold the government and its officials liable for compensation in appropriate cases, it

would result in better and more efficient handling of such cases.

The recent coal block and 2G spectrum scams are the most relevant examples of misfeasance in

public office. The Coalgate Scam exhibits glaring instances of public misfeasance. Simple

cancellation of the allocations is not sufficient in both the cases. The officials should be held liable
for misfeasance in public office and should be held liable for compensation under Tort Law. Such

an action will encourage transparency and accountability.

There is much scope for misfeasance to develop as a tort in India and some of the recent

developments indicate the acknowledgment of its need by the Supreme Court of India. In an order

rejecting and appeal against an order of the National Consumer Disputes Redressal Commission

(NCDRC), which held Vadodara Municipal Corporation, Oriental Insurance Company and the

proprietor of Ripple Aqua Sports guilty of malfeasance, the Supreme Court said that,

“Where activity of a public body is hazardous, highest degree of care is expected and breach of

such duty is actionable. This obligation is also referable to Article 21 (right to life and liberty) of

the Constitution. We reiterate the need for a comprehensive legislation dealing with tortious

liability of the State…in such cases for certainty on the subject. We request the Law Commission

to look into the matter and take such steps as may be found necessary.”

Conclusion

Victimless Torts is indeed a peculiar branch of Tort Law and there is still room for a proper

framework of the same. Creating a personal liability would contribute greatly to good governance

and highlight the need for a transparent, fair and honest exercise of power. It would in no way

suppress the enterprise of the officials or ministers or anyone in charge of a public office, nor

would it disallow them from conducting their duties efficiently. A responsible Government and

the concept of accountability promote good governance. Accountability is one of the

distinguishing features of a democracy and recognizing Public Misfeasance as a tort would only

promote and further the concept of accountability. Greater accountability is the need of India today.

There are people who exercise their powers most arbitrarily and dominate the common people of
India. It is mostly so because they’re aware that there are too many loopholes in the system for

them to escape.

Mere errors of judgment would not render the public servants to such consequences but where

their actions are mala fide, i.e. where the action has been done or order has been made knowing

that it is conflicting with law and detrimental to the interest of the state or where the action is done

with corrupt, immoral or other oblique motives, they should be held responsible and made liable.

Morality clearly plays an important role in Public Misfeasance and it’s recognition under a

systematic branch of Law is of utmost significance. Although the term “Victimless Torts” sounds

harmless, after concluding the research, it is evident that it is one of the most serious of torts. It

affects not just one individual or institution at the time of its commission but the entire public at

large. Corruption needs to be checked and controlled in India and providing recourse through Tort

Law will be a major step forward.

VICTIMLESS CRIME

A Victimless Crime, also known as Consensual Crime, is any activity which does not physically

harm a person or property, or to which was in fact consented, and is currently illegal if based on

statutory laws.

“Victimless or consensual crimes have unique characteristics that make them an indirect threat to

the privacy of innocent people. The laws against victimless crimes are not direct threats to privacy

themselves. In criminalizing certain acts, society makes a judgment that there can be no privacy

interest in those acts.

“But victimless crime laws do threaten the privacy of innocents because of the monitoring and

investigation they require for enforcement. None of the participants in a victimless crime will
report it to authorities. To enforce this kind of crime law, officials must engage in extensive

monitoring, wiretapping, and surveillance of suspects and the public.