TORTIOUS LIABILITY OF STATES

Synopsis

I. Introduction States Liability to be Sued

II. Meaning of Tort IV. Circumstances in Which State incurs

III. Tortuous Liability of the State Tortuous Liability

A. Position in England A. Non Sovereign Functions

B. Position in U.S.A. B. Sovereign Functions

C. Position in India V. Principle of Constitutional Torts

States Right to Sue VI. Conclusion

INTRODUCTION
Due to the establishment of welfare State, there has been tremendous increase in the State activities
causing serious danger to the person and property of the individuals. The State is not only responsible
for maintenance of law and order and collection of taxes, but also carries out various activities which
were traditionally considered to be actions of a private individual. In such situations, the issue of
liability of the State or Govt. becomes of much more importance.

The Constitution of India views the Union and the States as juristic persons capable of owning and
acquiring property, making contracts, carrying on trade and commerce, bringing and defending legal
actions, just as private persons, subject to the modifications specified in the Constitution itself. It
therefore also makes provisions relating to liability of states in case of committing of any tort, or
breach of a contract.

MEANING OF TORT
According to Salmond, Tort means a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or
other merely equitable obligation.

According to Section 2(m) of the Limitation Act, 1963, tort means a civil wrong which is not
exclusively a breach of a contract or breach of trust.

Generally, every person has a capacity to sue, and the liability to be sued in tort. However, there are
certain variations of this rule.
TORTUOUS LIABILITY OF THE STATE
State may be held liable for the tortuous acts of its servants in certain cases. This liability is known as
tortuous liability of State. Since State is not a natural person who can himself perform any act, and
can only act through its agencies, liability of State is based on the principle of vicarious liability.
Tortuous liability of States makes the State liable for the acts and omissions of the servants,
voluntary or involuntary, and brings it before the Court of Law in a claim for non liquidated damages
for such acts.

POSITION IN ENGLAND
In England, from very early times the King could not be sued in his own courts and the maxim that
the King can do no wrong was invoked to negative the right of a subject to sue the King. But this
maxim has now been superseded by the Crown Proceedings Act of 1947 which makes the Crown
liable in tort to the same extent as private persons.

POSITION IN U.S.A.
The doctrine of sovereign immunity was also prevalent in USA. However the Federal Tort Claims
Act, 1946 was passed by the Congress with the object to abrogate the immunity of the Federal Govt.
from the liability of the torts committed by its servants.

POSITION IN INDIA
Under the Constitution of India two Articles viz. Article 294 and Article 300 contain explicit and
implicit provisions regarding tortuous liability of State and suit against it.

Article 294 (b) of the Constitution of India provides that

The liability of Union Government or State Government may arise out of any contract or
otherwise.

The word otherwise would include various liabilities including tortuous liability also. This Article
thus constitutes and transfers the liabilities of Government of India and Government of each
governing province in the Union of India and corresponding States.

Furthermore, Article 300(1) of the Constitution says

The Government of India may sue or may be sued by the name of Union of India and the
Government of a State may sue or may be sued by the name of the State.

Article 300 thus provides that the Union of India and the States are juristic persons for the purpose of
suit or proceedings.

Although the Union of India and the State Governments can sue and be sued, but the circumstances
under which that can be done have not been mentioned. Article 300 further provides that, the Union
of India and the State Government can sue or be sued in the like cases as the Dominion of India and
the corresponding Indian States might have sued or been sued if the Constitution had not been
enacted.

Therefore, the position prevailing before the commencement of the Constitution remains unchanged.

Furthermore, according to Article 300, such position of the Union and the States is subject to law
enacted by the Parliament or the State Legislature. Though the Parliament and he State Legislature
have been empowered to pass laws to change this position, no such law has been enacted.

In 1956, the Law Commission of India had submitted the first report on Liability of the State in
Tort, wherein it was recommended that suitable law is to be enacted by the Parliament, defining the
position of the governmental tortuous liability in the new changed context. But till today, such law has
not been passed.

States Right to Sue

So far as the right to sue is concerned, the Government of India may sue by the name of Union of
India, while the State may sue by the name of that State e.g. State of Maharashtra. The
Governments can sue not only a private person but also another Government. For example, the Union
may bring a claim against one or more States; while a State may bring a claim against another State or
the Union. [Article 131]

States Liability to be Sued

In regard to the States liability to be sued, a distinction is to be made between contractual liability
and tortuous liability. Contractual liability of the State is provided under Article 299 of the
Constitution.

With regard to the tortuous liability of the State, in the absence of any legislation, Courts in India have
no alternative than to follow the existing case-law which is founded on the old English theory of
immunity of State, founded on the maxim, King can do no wrong.

CIRCUMSTANCES IN WHICH STATE INCURS TORTUOUS

LIABILITY
The State may ordinarily be held liable in tort for performance of non-sovereign functions. However,
in certain situations it has been held that state may be liable for torts even for sovereign functions.

NON SOVEREIGN FUNCTIONS

Since the Constitution of India does not specify the circumstances in which the State may be sued,
and provides that the position before Independence shall be continued, we need to look into the
provisions of the Govt. of India Act, 1935. This Act also recognized the continuance of position
prevailing earlier. Even the Govt. of India Act, 1915 did the same. Eventually we need to analyse the
provisions of the Govt. of India Act, 1858. S. 65 of the Govt. of India Act, 1858 provided that the
Secretary of State may be sued in India as well as in England and that all persons may take such legal
action against the Secretary of State as they could have taken against the East India Company.

For this purpose we have to now analyse the case of

P & O. Steam Navigation Co

v.
Secretary of State
(1861 Bom)
In this case, a servant of P & O Co. was travelling from Garden Reach to Calcutta in a carriage driven
by horses and was passing by the Government Kiddepur Dockyard. Some workmen of Dockyard were
carrying a heavy piece of iron for the purpose of repairing a steamer. While walking in the very centre
of the road, on seeing the coach quite near, they suddenly dropped the iron. The iron fell with great
noise which frightened the horses, they rushed forward against the iron and as a result one of the
horses got injured. The Company filed a suit against the Secretary of State-in Council for damages for
injury caused to its horse by the negligence of the workmen employed in the Government Dockyard.

The Court drew a distinction between acts done in exercise of sovereign functions and acts done in the
exercise of non-sovereign functions. The Court held that, liability could only arise in case of non-
sovereign functions. Maintenance of dockyard was considered to be a non-sovereign function, and
therefore the Secretary of State was held liable.

State of Rajasthan
v.
Vidyawati
After independence, the question of tortuous liability of the Government came to be reconsidered by
the Supreme Court in State of Rajasthan v. Vidyawati in which a jeep was owned and maintained by
the State of Rajasthan for official use of the Collector of the district. Once the driver of the jeep was
taking it back from the workshop after repairs, by his rash and negligent driving of the jeep a
pedestrian was knocked down and fatally injurer and died. His widow sued the State for damages. The
State claimed immunity on the ground of act state of under sovereign authority. The State claimed that
the jeep was maintained in exercise of sovereign powers and not as a part of commercial activity of
the State. The Court held that the act of public servant committed by him during the course of his
employment was in discharge of duties assigned to him not by virtue of delegation of any sovereign
powers. It was held that the act of the driver was not in the exercise of a sovereign function and
therefore held that State was vicariously liable for rash and negligent act of the driver.
Kasturi Lal Ralia Ram
v.
 State of U.P
In this case, the question of vicarious liability was considered once again by the Supreme Court. A
certain quantity of gold and silver were seized by police from Ralia Ram on the suspicion that it was
stolen property. It was kept in Government malkhana which was in custody of a Head Constable. The
property was misappropriated by the Head Constable who flew to Pakistan. Ralia Ram was
prosecuted but acquitted of the charge. A suit for damages was filed by Ralia Ram against the State
for the loss caused to him by the negligence of Police Authorities. The question arose whether the
State was liable to compensate for the loss so caused. Following the principle laid down in Steam
Navigation Co. case, the Supreme Court ruled that the state was not liable as Police Officers were
exercising Sovereign Functions.
In Shyam Sunder v. State of Rajasthan, a truck belonging to the PWD was engaged in the famine
relief work and a person was killed due to the negligence of the driver of the truck. The SC held the
famine relief work as a non-sovereign function and the State liable for damages.
In Achhut Rao Hari Bhau Kodwa & Anr. v. State of Maharashtra & Ors. the Government doctor
and the State were held liable because of the negligence of the said doctor in the hospital resulting in
death of the patients. It was held that running of hospitals not being exclusive function of the
Government, maintaining a hospital by Govt. would not be an exercise of sovereign power so as to
enable to claim immunity from liability for the tortuous acts of its hospital employees.
SOVEREIGN FUNCTIONS
In various cases, it has been held that no action lies against the Government for injury
done to an individual in the course of exercise of sovereign functions of the State, such as:
1. Commandeering goods during war
2. Making or repairing military road
3. Administration of justice
4. Improper arrest, negligence or trespass by Police Officers
5. Payment of money in custody of Government to a person other than the rightful owner
by an officer in exercise of statutory duty

PRINCIPLE OF CONSTITUTIONAL TORTS

After 1980, a new judicial trend has become visible in the area of right to life and personal liberty
under Article 21. Gradually the principle laid down in Kasturi Lals case, and the list of sovereign
functions is being limited.

Where along with the commission of a tort, the State also violates the Fundamental Right of any
person, it is termed as a Constitutional Tort.

In the absence of any law made by the Parliament, the Supreme Court has declared that in cases of
constitutional torts the right to compensation is a fundamental right under Article 21.
In

Nilabati Behra

v.

State of Orissa

the petitioners son was arrested by the police under the suspicion of theft. He was handcuffed and
was kept in the police custody. On the next day, his body was found by the side of the railway track.
The mother of the deceased sent a letter to the Court alleging custodial death of her son and claimed
compensation on the ground of violation of Article 21. The Supreme Court awarded compensation of
Rs. 1,50,000/- to the mother of the deceased and said that right to compensation is a fundamental
right under Article 21 of the Constitution.

In

Rudal Shah

v.

State of Bihar

The Petitioner was kept in jail for 14 years after he had been acquitted by a competent court. the State
was held liable to pay compensation to the Petitioner.

In

Bhim Singh

v.

State of J&K

An MLA was arrested and detained by the police without sufficient reason and thereby he was
prevented from attending the session of the Legislative Assembly. The State was directed to pay Rs.
5,000/- as compensation to the Petitioner for the violation of his right to life and personal liberty.

CONCLUSION
It is rightly observed by the Supreme Court in N. Nagendra Rao v. State of A.P.,

no civilised system can permit an executive to play with the people of a country and claim to
be sovereign. To place the State above the law is unjust and unfair to the citizen. In the
modern sense, the distinction between sovereign and non-sovereign functions does not exist.

Thus it can be seen that in the absence of any legislation, the Courts have limited the scope of the
doctrine of sovereign immunity and have simultaneously evolved the concept of a constitutional tort,
thereby guaranteeing the right to compensation as a fundamental right.