VICARIO

US
LIABILITY
OF STATE
Submitted by: Zaheen
Roll no: 118/14
BA LLB, Sec: B

Submitted to: Ms. Anju Berwal

 VICARIOUS LIABILITY OF STATE

2
Index

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 List of cases

 Introduction

 Position in England

 Article 300 of Constitution of India

 P & O Steam Navigation Co. vs. Secretary of State

 Vidyawati case

 Kasturi Lal case

 Sovereign and Non-sovereign functions

 Uncertainty of Present position in India

 VICARIOUS LIABILITY OF STATE

Abbreviations used....

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 v./vs. – versus

 co. – company

 ltd. – limited

 A.I.R. – All India Reporter

 S.C. – Supreme Court

 U.P. – Uttar Pradesh

 A.P. – Andhra Pradesh

 J. & K. – Jammu and Kashmir

 VICARIOUS LIABILITY OF STATE

4
List of cases

Page
1. Peninsular and Oriental Steam Navigation Company v.

Secretary of State for India (1861) 5 B.H.C.R. App. P.1.

2. Nobin Chander Dey v. Secretary of State I.L.R. 1 Cal. 11.

3. Secretary of State for India in Council v. Hari Bhanji I.L.R. 1

Cal. 11.

4. Vidyawati v. Lokumal A.I.R. 1957 Raj. 305.

5. Shyam Sunder v. The State of Rajasthan A.I.R. 1964 S.C. 890.

6. Kasturi Lal v. The State of U.P. A.I.R. 1965 S.C. 1039.

7. State of M.P. v. Chironji Lal A.I.R. 1981 M.P. 65.

8. People’s Union of Democratic Rights v. State of Bihar A.I.R.

1987 S.C. 355.

9. Bhim Singh v. State of J. & K. A.I.R. 1986 S.C. 494.

10. Rudal Sah v. State of Bihar A.I.R. 1983 S.C. 1086.

11.N. Nagendra Rao & Co. v. State of A.P. A.I.R. 1994 S.C. 2663.

1.
 VICARIOUS LIABILITY OF STATE

5
Introduction

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The word ‘Vicarious’ means to ‘feel or experience by watching or reading

somebody else do something’. So ‘Vicarious Liability’ means being liable for

something that somebody else has done. In legal terms, it is the liability of one

person which may arise for the act done by another person. The common examples

of such a liability are:

i. Liability of the Principal for the tort of his agent

ii. Liability of partners for each other’s tort

iii. Liability of the master for the tort of his servant

iv. Liability of the state for the tort of its employees

In case of ‘Vicarious Liability of the State’, some questions arise automatically.

Why do we need to study the liability of the state differently? Why cannot we deal
with the cases against the state as we treat the others?

The reasons for some extra privileges to be given to the state are:

A. The state needs to perform some extra functions and duties which cannot be

undertaken by a private individual.

B. The state is the ‘law maker’. Since it has made the law, theoretically it cannot

commit a wrongful act.

C. The taxes collected from the masses are supposed to be used for public

welfare. It is illogical and unfair to take tax from one private individual and

pay compensation, from that money, to another.

But with the increase of the functions of the state, it started becoming unjustified to

retain the immunity of the state against its servants. So certain old rules were

abolished and new ones, made.

Getting into the details of the topic, the relevant history must be taken into account.
 VICARIOUS LIABILITY OF STATE

POSITION IN ENGLAND

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In common law, the crown could not be sued in tort either for wrong authorized by it

or committed by its servants in course of employment. Moreover no action could lie

against the head of the department or other superior officials for the act of their

subordinates for relationship between them was not master and servant but of

fellow servants. The individual wrongdoer was personally liable and he could not

take defence of orders of Crown, or state necessity. The immunity of the Crown from

liability did not exempt the servant from liability. The result was that, whereas an

ordinary master was liable vicariously for the wrong done by his servant, the

government was not liable for a tort committed by its servant. 1

The maxim of the common law was “the King can do no wrong” 2 and, therefore, no

action in tort was possible against the crown either for wrongs which has expressly

authorized or for wrongs committed by its servants in the course of their

employment.3 The actual wrongdoer acting on behalf of the Crown did not enjoy this

exemption but while he personally could be sued, his superior officers could not, for

he would not be their servant, but like them the servant of the Crown.45

With the increase in the functions of the state, the crown became one of the

largest employers of labour in the country. Under these circumstances, the rule of

immunity for the Crown became highly incompatible with the demands of justice. To

overcome the shortcomings of the prevailing law and to ensure justice, various

devices were found out. The Parliament intervened by enacting the Crown

Proceeding Act, 1947, which into force on January 1, 1948. Hence the very citadel

of the absolute rule of sovereign has now been blown up. Section 2(1) provides as

follows-“Subject to the provisions of this Act, the Crown shall be subject to all those

liabilities in tort to which, if it were a private person of full age and capacity, it

would be subject in respect of torts committed by its servants or agents, subject to

other provisions in this Act. As already pointed out, the law applicable to India with

respect to torts committed by a servant of the Government was very much in

1 R.K. Bangia at 132

2 Hale, P.C. Vol. 1 at 43

3 Canterburry (Viscount) v. Att. Gen., 1842, 1 Ph. 305.

4 Bainbridge v. P.M.G., 1906, 1 K.B. 178.

5 Law of torts by Sinha at 98

 VICARIOUS LIABILITY OF STATE

advance of the Common law, before the enactment of the Crown Proceeding Act,

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1947, which has revolutionised the law in England, also.

Article 300 of the Constitution of India

The law in India with respect to the liability of the State for tortuous acts of its

servants has become entangled with the nature and character of the role of the East

India Company prior to 1858. It is therefore necessary to trace the course of

development of the law on this subject, as contained in article 300 of the

Constitution.

Clause (1) of Article 300 of the Constitution provides that the Government of

India may sue or be sued by the name of Union of India and the government of State

may sue or be sued by the name of State and may, subject to any provisions which

may be made by the act of parliament or the state legislature enacted by virtue of

powers conferred by this constitution, sue or be sued in relation to their respective

affairs in the like cases as the Dominion of India and the corresponding Provinces

or the corresponding Indian states might have sued if this constitution had not been

enacted.

Even though more than 50 years have elapsed since the commencement of

the constitution, no law has so far been made by parliament as contemplated by

article 300, notwithstanding the fact that the legal position emerging from the

article has given rise to a good amount of confusion. Even the judgements of the

Supreme Court have not been uniform and have helped to remove the confusion on

the subject, as would be evident from what is stated hereinafter.

Act of 1935

Even when the Government of India Act, 1935, was enacted, (replacing the Act of

1915), the same legal position was continued by section 176(1) of the Act which read

as follows:

“The Federation may sue or be sued by the name of the Federation of India and a

Provincial Government may sue or be sued by the name of Province, and, without

prejudice to the subsequent provisions of this Chapter, may, subject to any

provisions which may be made by an Act of the Federal or a Province legislature

enacted by virtue of powers conferred on that legislature by this Act, sue or be sued
 VICARIOUS LIABILITY OF STATE

in relation to their respective affairs in the like cases as the Secretary of State in

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Council might have sued if this Act had not been passed.”

Act of 1915

This very provision was practically contained in section 32 of the Government of

India Act, 1915. Sub-sections (1) and (2) of that section read as follows:

“(1) The Secretary of State in Council may sue and be sued by the name of the

Secretary of State in Council, as a body corporate.

(2) Every person shall have the same remedies against the Secretary of State in

Council as he might have had against the East India Company, if the Government of

India Act 1858 and this Act have not been passed.”

Government of India Act, 1858

When the governance of India was taken over by the British Crown in 1858, an Act

was passed in that year6, entitled the Government of India Act, 1858, Section 65

declared that government’s liability in this behalf shall be same as that of the

Company. It would be appropriate to set out the section in full:

“The Secretary of State in Council shall and may sue and be sued as well in

India as in England by the name of Secretary of State in Council as a body

corporate; and all persons and bodies politic shall and may have and take the same

suits, remedies and proceedings, legal and equitable, against the Secretary of State

in Council, as they could have done against the said Company; and the property

and effects hereby vested in Her Majesty for the purposes of government of India, or

acquired for the said purpose, shall be subject and liable to the same judgements

and executions as they would, while vested in the said Company, have been liable, to

in respect of debts and liabilities lawfully contracted and incurred by the said

Company.”

Under the act of 1833,7 enacted by the British Parliament, the governance of

India was entrusted to the East India Company. The Act declared that the Company

held the territories in trust for His Majesty, his heirs and successors.

6 Act 21 and 22 Vic. Ch. 106

7 3 and 4 William IV ch. 85

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Resultant position

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Thus, Article 300 of the Constitution practically takes us back to the Act of 1858,

which, in its turn, leads us to a consideration of the nature and extent of the

liability of the East India Company.

A consideration of the pre- Constitution cases begins with judgement of the

Supreme Court of Calcutta in the case.

P & O Steam Navigation Co. vs. Secretary of

State

In the case, Peninsular and Oriental Steam Navigation Company v. Secretary of

State for India8, it was actually reported as an Appendix to one of the Bombay High

Court Reports – 5 B.H.C.R. App. P.1. A servant of the plaintiff-company was

proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair

of horses belonging to the plaintiff. He met with an accident which was caused due

to the negligence of the servants of the Government. For the loss caused by the

accident, the plaintiff claimed damages against the Secretary of State for India. Sir

Barnes Peacock C.J. (of the Supreme Court) observed that the Doctrine that the

“King cannot do wrong”, had no application on the East India Company. The

company would have been liable in such cases and the Secretary of State was

thereafter liable (He was interpreting section 65, Government of India Act, 1858,

which equated the liability of the Secretary of State for India with of East India

Company). On this holding it was not necessary for Peacock C.J. to discuss the

distinction between sovereign and non- sovereign functions. But he made a

distinction between the two and observed, that if a tort were committed by a public

servant in the discharge of sovereign functions, no action would lie against the

Government – e.g. if the tort was committed while carrying on hostilities or seizing

enemy property as prize.

The doctrine of immunity for acts done in the exercise of “sovereign

functions”, enunciated in the P & O case, was applied by the Calcutta High Court in

Nobin Chander Dey vs. Secretary of State 9. In that case, the plaintiff contended

8 (1861) 5 B.H.C.R. App. P.1.

9 (1873) ILR 1 Cal. 1

 VICARIOUS LIABILITY OF STATE

that the Government had made a contract with him for the issue of a licence for the

10
sale ganja and had committed breach of contract. The High Court held as under:

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i. On the evidence, no breach of contract had been proved.

ii. Even if there was breach of contract, the act was done in exercise of sovereign

power and, therefore it was not actionable. The High Court expressly followed

the P & O ruling.

One of the authorities for this point of view is the case of The Secretary of State

for India in Council vs. Hari Bhanji10, wherein the position was explained in the

following way:

“The act of State of which the municipal courts of Britih India are debarred

from taking cognizance, are acts done in the exercise of sovereign powers which do

not profess to be justified by municipal law Where an act complained of is

professedly done under the sanction of municipal law, and in the exercise of powers

conferred by that law, the fact that it is done by the sovereign powers is not an act

which could possibly be done by a private individual, does not oust the jurisdiction

of the civil court.”

The Law Commission of India, in its First Report in 1956, has discussed the

whole question and according to its view, “the law was correctly laid down in Hari

Bhanji’s case.”11

10 I.L.R. 1 Cal. 11.

11 R.K. Bangia at 136

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Vidyawati case- a broad approach

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In Vidyawati v. Lokumnal12, the plaintiff’s husband died after being knocked down

by a Government jeep car which was driven rashly and negligently by an employee of

the State of Rajasthan. At the time of the accident, the car was being taken from the

workshop to the Collector’s bungalow for the Collector’s use. In an action against

the State of Rajasthan, the State was held liable. The Rajasthan High Court did not

find any reason for treating the State differently from an ordinary employer and held

that the State of Rajasthan was liable for the wrong of the driver, According to Dave,

J.: “The State is no longer a mere Police State and this country has made vast

progress since the above decision (Peninsular Case) was made. Ours is now a

Welfare State and it is in the process of becoming a fully fledged Socialistic State.

Every day, it is engaging itself in numerous activities in which any ordinary person

or group of persons can engage him or themselves. Under the circumstances, there

is all the more reason that it should not be treated differently from other ordinary

employers when it is engaging itself in activities in which any private person can

engage himself.”

On appeal, the Supreme Court confirmed the decision of the Rajasthan High

Court and endorsed the view expressed by it. In State of Rajasthan v. Vidyawati 13,

the observations made by the Supreme Court may also be noted. “In this

connection, it has to be remembered that under the Constitution, we have

established a welfare State, whose functions are not confined only to maintain law

and order, but extend to engaging in all activities including industry, public

transport, State trading to name only a few of them. In so far as the State activities

have such wide ramification involving not only the use of sovereign powers but also

its powers as employers in so many public sectors, it is too much to claim that the

State should be immune from the consequences of tortious acts of its employees

committed in the course of their employment as such.”

In spite of the decision of the Supreme Court in Vidyawati case, the position

is not very certain and satisfactory. The Supreme Court in the case of Kasturi Lal v.

Stale of U.P.14 has again stated that if the act of the Government servant was one

12 A.I.R. 1957 Raj. 305

13 Supra 10

14 A.I.R. 1965 S.C. 1039.

 VICARIOUS LIABILITY OF STATE

which could be considered to be in delegation of sovereign powers, the State would

12
be exempt from liability, otherwise not.15

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In Shyam Sunder vs. the State of Rajasthan 16,’ the Supreme Court e the driver of

a truck engaged in a famine relief work is negligent, the State will be liable for the

same, as famine relief work is not a sovereign function of the State. It is a work

which can be undertaken by private individuals.17

Torts committed by servants of state in discharge of

obligations imposed by Law and in exercise of
sovereign functions
Tort committed while performing duly in discharge of obligations imposed by law has

been considered to be a defence in India.

The exemption of the State from liability to pay damages for the tortious act of

the servants, where a Government servant in carrying out or purporting to carry

out duties imposed by the law has been justified on the ground that in such cases,

the Government servant purports to carry out duties imposed by the letter of the

law and is controlled by the law and not by the Government.

In order to exempt the State from liability, it is further necessary that the

statutory functions which are exercised by the Government servant were exercised

by way of delegation of the sovereign power of the State. In case, the tortious act

committed by the servant was in discharge of non-sovereign functions, the State

would be liable for the same.18

Acts of police officials

The Madhya Pradesh High Court made a similar decision in State of MP v. Chironji

Lal19. In this case, the police made a lathi charge on a student’s procession, when

the same became unruly. The loudspeaker set belonging to the plaintiff, which was

15 Supra 11 at 138

16 A.I.R. 1964 S.C. 890.

17 Supra 11 at 139

18 Ibid at 145

19 A.I.R. 1981 M.P. 65.

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being used by the students in their procession, got damaged. In an action by the

13
owner of the loudspeaker against the State to recover compensation for damage to

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the loudspeaker, it was held that maintaining law and order including quelling of

riot is a sovereign function, and the State is not liable for any damage caused in the

exercise of that function.

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Kasturi Lal case

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In Kasturi Lal Ralia Ram Jam v. State of U.P. 20, the Supreme Court also refused

to hold the State liable for the act done by its servants in the exercise of statutory

duties. In this case, a partner of the firm of jewellers in Amritsar, Kasturi Lal Ralia

Ram Jam, happened to go to Meerut (in U.P.) reaching there by a train in the

midnight. He was carrying a lot of gold and silver with him. The police constables,

on the round in the market through which he was passing, suspected that he was in

the possession of stolen property. He was taken to the police station. He, with his

belongings, was kept in the police custody under the provisions of the Cr. P.C. Next

day, he was released on bail and sometime thereafter the silver was returned to him.

The gold was kept in the police Malkhana, and the same was then misappropriated

by the Head Constable, Mohammad Amir, who thereafter fled to Pakistan. The

plaintiff brought an action against the State of U.P. claiming either the return of the

103 tolas of gold, or compensation of Rs. 11.000/- in lieu thereof.21

It was found that the police officers failed to observe the provisions of the U.P.

Police Regulations in taking care of the gold seized, The Supreme Court held that

since the negligence of the police officers was in the exercise of statutory powers

which can also be characterised as sovereign powers, the State was not liable for the

same.

According to Gajendragadkar, C.J.: “In the present case, the act of negligence

was committed by police officers while dealing with the property of Ralia Ram which

they had seized in exercise of their statutory powers. Now, the .power to arrest a

person, to search him, and to seize property found with him, are powers conferred

on the specified officers by statute and in the last analysis they are powers which

can be properly characterised as sovereign powers, and so, there is no difficulty in

holding that the act which gave rise to the present claim for damages has been

committed the employees of the respondent during the course of its employment;

but the employment in question being of the category which can claim the special

characteristic of sovereign power, the claim cannot be sustained, and so we

20 Supra 12

21 Supra 11 at 147
 VICARIOUS LIABILITY OF STATE

inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that

15
the present claim is not sustainable.”22

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The position was thus, stated by the Supreme Court in Kasturi Lal v. State

of U.P.23: “If the tortious act is committed by a public servant and it gives rise to a

claim for damages, the question to ask is, Was the tortious act committed by the

public servant in discharge of statutory functions which are preferable to, and

ultimately based on, the delegation of the sovereign powers of the State of such

public servant? If the answer is in the affirmative action for damages for loss caused

by such tortious act will not lie. On the other hand, if the tortious act has been

committed by a public servant in discharge of duties assigned to him, not by virtue

of the delegation of any sovereign power, an action for damages would lie. The act of

the public servant committed by him during the course of his employment is, in this

category of cases, an act of servant who might have been employed by a private

individual for the same purpose.”24

Basis of the judgement in Kasturi Lal case

The State of U.P. was held to be not liable on the grounds that:

 The police officials were acting in discharge of statutory powers

 The power of the police official in keeping the property in the Police Malkhana

was a sovereign function.

Kasturi Lal bypassed

Although the decision of the Supreme Court in Kasturi Lal’s case still holds good,

for practical purposes its force has been considerably reduced by a number of

decisions of the Supreme Court. Without expressly referring to Kasturi Lal or

distinguishing or overruling this case, a deviation from this decision has been made.

Under the circumstances in which the State would have been exempted from liability

if Kasturi Lal had been followed, the State has been held liable. The State has been

held liable in respect of loss or damage either to the property or to a person.25

22 Ibid at 148

23 Supra 12

24 Supra 11 at 146

25 Ibid at 151
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16
Sovereign immunity is subject to Fundamental Rights Death

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or injury to persons

In People’s Union for Democratic Rights v. State of Bihar 26, about 600 to 700

poor peasants and landless persons had collected. Without any previous warning by

the police or provocation on part of those collected, the Superintendent of Police

surrounded the gathering with the help of police force and open fired as a result of

which at least 21 persons, including children died and many more were injured. The

People’s Union of democratic rights (PUDR) filed an application before the Supreme

Court under Article 32 of the Constitution, claiming compensation for the victims of

the firing. It was held by the Supreme Court that State should pay compensation of

Rs. 20,000 for every case of death and Rs. 5,000 for every injured person. This

amount was ordered to be paid within two months without prejudice to any just

claim for compensation that may be advanced by the sufferers afterwards.27

In Bhim Singh vs. State of J & K 28, the Supreme Court recognised the

liability of the state to pay compensation, when the right to life and personal liberty

is guaranteed under Article 21 of the constitution has been violated by the officials

of the State. Bhim Singh, the petitioner, who was an M.L.A. was wrongfully

detained by the police and thus prevented from attending the assembly session. The

Supreme Court ordered the payment of Rs. 50,000 by way of compensation to the

petitioner.29

In Rudal Sah v. State of Bihar30, the petitioner was acquitted by the Court of

Sessions on June 3, 1968 but was released from the jail more than 14 years

thereafter, on October 16, 1982. In the habeas corpus petition, the petitioner not

only sought his release but also claimed ancillary reliefs like rehabilitation,

reimbursement of expenses likely on medical treatment and compensation for

unlawful detention. The State could not give any justifiable cause of detention except

26 A.I.R. 1987 S.C. 355

27 Supra 11 at 154

28 A.I.R. 1986 S.C. 494

29 Supra 11 at 155

30 A.I.R. 1983 S.C. 1086

 VICARIOUS LIABILITY OF STATE

pleading that the detention was for medical treatment of the mental imbalance of

17
the petitioner. The Supreme Court ordered the payment of compensation of Rs.

Page
30,000 (as an interim measure) in addition to the payment of Rs. 5,000, which had

already been made by the State of Bihar. It was also stated that the said order of

compensation did not preclude the petitioner from bringing a suit to claim

appropriate damages from the State and its erring officials.31

Sovereign and non sovereign functions

Distinction between sovereign and non sovereign functions- Nagendra Rao case

This distinction between sovereign and non sovereign functions was considered in

length in N. Nagendra Rao vs. State of A.P.32 All the earlier Indian decisions on

the subject were referred to the court enunciated the following legal principles, in its

judgement:

“In the modern sense, the distinction between sovereign and non-sovereign

power does not exist. It all depends on nature of power and manner of its exercise.

Legislative supremacy under the Constitution arises out of constitutional provisions.

The legislature is free to legislate on topics and subjects carved out for it. Similarly,

the executive is free to implement and administer the law. A law made by the

legislature may be bad or may be ultra vires, but, since it is an exercise of legislative

power, a person affected by it may challenge its validity but he cannot approach the

court of law for negligence in making the law. Nor can the government in exercise of

its executive action; be sued for its decision in political and policy matters. It is in

public interest that the acts performed by the State, either in its legislature or

executive capacity, it should not be answerable in torts. That would be illogical and

impractical. It would be in conflict with every modern notion of sovereignty.”

The court in the above case suggested the following tests-

“One of the tests to determine if the legislative and executive function is

sovereign in nature is, whether the State is answerable for such actions in courts of

law. For instance, acts such as defence of the country, raising 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

31 Supra 29

32 AIR 1994 SC 2663

 VICARIOUS LIABILITY OF STATE

in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No

18
suit under Civil Procedure Code would lie in respect of it. The State is immune for

Page
being sued, as the jurisdiction of the courts in such matters is impliedly barred.”

The court proceeds further, as under:

“but there the immunity ends. No civilised system can permit an executive to play

with the people of its country and claim that it is entitled to act in any manner, as it

is sovereign. The concept of public interest has changed with structural change in

the society. No legal or political system today can place the State above (the law) as it

is unjust and unfair for a citizen to be deprived of his property illegally by negligent

act of the officers of the State without any remedy. From sincerity, efficiency and

dignity of the State as a juristic person, propounded in the nineteenth century as

sound sociological basis for State immunity, the circle has gone around and the

emphasis now is more on liberty, equality and the rule of law. The modern social

thinking of progressive societies and the judicial approach is to do away with

archaic State protection and place the State or the government on par with any

other juristic legal entity. Any watertight compartmentalisation of the functions of

the State as ‘sovereign and non-sovereign’ or ‘governmental or non-governmental’ is

not sound. It is contrary to modern jurisprudential thinking. The need of the staeto

have extraordinary powers cannot be doubted. But, with the conceptual change of

statutory power being statutory duty for the sake f society and the people, the claim

ofa common man or ordinary citizen cannot be thrown out, merely because it was

done by an officer of the State; duty of its officials and right of the citizens are

required to be reconciled, so that the rule of law in a Welfare State is not shaken.”

The court emphasised the element of welfare state in these words:

“in a welfare state functions of the state are not only defence of the country or

administration of justice or maintaining law and order, but it extends to regulating

and controlling the activity of the people in almost every sphere, educational,

commercial, social, economic, political, and even marital. The demarcating line

between sovereign and non sovereign powers, for which no rational basis survives,

has largely disappeared. Therefore barring functions such as administration of

justice, maintenance of law and order and repression of crime etc. Which are among

the primary and inalienable functions of a constitutional government, the state

cannot claim any immunity.”

The court linked together state and the officers:

 VICARIOUS LIABILITY OF STATE

“The determination of vicarious liability of the State being linked with the negligence

19
of its officers, if they can be sued personally for which there is no dearth of

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authority and the law misfeasance in discharge of public duty having marched

ahead, there is no rational for the proposition that even if the officer is liable the

State cannot be sued.”

Present position in India is uncertain

Has the law as stated in Kasturi Lal been changed through a number of decisions

of the Supreme Court referred to above? Should the courts in India follow Kasturi

Lal or subsequent decisions of the Supreme Court in which the State has been held

liable for the wrongs of its servants? It is interesting to note that in many of the

cases, the Supreme Court has granted compensation as an ancillary relief while

exercising its writ jurisdiction under Article 32 of the Constitution. The Supreme

Court has not only itself granted compensation as, an interim measure but has also

expressly stated that the same is granted without prejudice to the right of the

petitioners to claim just compensation from the State by a subsequent regular suit.

This approach by the Supreme Court is a welcome measure which was long overdue
to do away with the outmoded law which was being applied for historical reasons,

and perhaps, owing to the wrong interpretation of the law on the subject.

In Kasturi Lal, the Supreme Court had expressed dissatisfaction at the prevailing

position, when Gajendragadkar, C.J. stated:

“Our only point in mentioning the Act is to indicate that the doctrine of immunity

which has been borrowed in India in dealing with the question of the immunity of

the State in regard to claims made against it for tortious acts committed by its

servant, was really based on the Common Law principle which has now been

substantially modified by the Crown Proceedings Act. In dealing with the present

appeal, we have ourselves been disturbed by the thought that a citizen whose

property was seized by process of law, has to be told when he seeks a remedy in a

court of law ground that his property has not been returned to him, that he can

make no claim against the State. That, we think, is not a very satisfactory position in

law. The remedy to cure this position, however, lies in the hands of Legislature.”

In its First Report on the ‘Liability of State in Tort’, The Law Commission of India

recommended legislation prescribing State liability, as in England. On the basis d

that Report, a Bill entitled The Government (Liability in Tort) Bill, 1967’ was

introduced in the Lok Sabha. The Bill as reported by the Joint Committee of both
 VICARIOUS LIABILITY OF STATE

the Houses of Parliament was placed before the Lok Sabha in 1969. It has not yet

20
become the law. The Bill seeks to define the liability of the Government towards

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third parties for the wrongs of its servants, agents and independent contractors

employed by it.

In N. Nagendra Rao & Co. v. State of A.P. 33, the Supreme Court considered

the question of vicarious liability of the Government for the negligence of its

servants, it noted the earlier Supreme Court decisions in Vidyawati’s34 and Kasturi

Lal’s35 cases, recommendations of the Law Commission in its First Report for

statutorily recognizing the liability of the State as had been done in England

through the Crown Proceedings Act, 1947 and in U.S.A. through the Federal Torts

Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no

relevance in the present day.

It is unfortunate that the recommendation of the Law Commission made long

back in 1956, and the suggestions made by the Supreme Court, have not yet been

given effect to. The unsatisfactory state of affairs in this regard is against social

justice in a welfare State. It is hoped that the Act regarding State liability will be

passed without much further delay. In the absence of such legislation, it will be in

consonance with social justice demanded by the changed conditions and the

concept of welfare State that the courts will follow the recent decisions of the

Supreme Court rather than Kasturi Lal.

33 Supra 32

34 Supra 12

35 Supra 14
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BIBLOGRAPHY

21
Page
WEBSITES
 www.wikipedia.org

 www.scribd.com

 www.legalserviceindia.com

 www.manupatra.com

 www.indiankanoon.com

Dictionary
 Black’s legal dictionary

Books
 Law of Torts by R.K. Bangia

 Law of torts by Justice G.P. Singh

 Law of Tort by P.S.A. Pillai

Last visited website: www.manupatra.com

 VICARIOUS LIABILITY OF STATE

22
idjuewjs

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Law of torts- Salmond

The Crown

There is no remedy against the crown for a tort. For any violation by the crown of

the rights of subjects the appropriate remedy, if there is one at all, is not an action

but a petition of right. This remedy, however, is limited in its scope, and is not

available in cases of tort. The crown cannot be charged with negligence, fraud or

other forms of tortuous wrongdoings, nor is it responsible for the acts of its agents

and servants. The rule is subject to the following qualifications:-

a) A petition of right will lie against the Crown for the recovery of damages for

the breach of contract; and not the less so, it is presumed, because that

breach of contract is also a tort.

b) A petition of right will lie against the Crown for the specific restitution of

property wrongfully detained in the possession of the Crown; or for the value

of such property, when the Crown has had the benefit of it and specific

restitution is impossible.

“The only cases”, it has been said, “in which the petition of the right is open to

the subject are where the land or goods or money of a subject have found their way

into the possession of the Crown, and the purpose of the petition is to obtain

restitution, or if restitution cannot be given, compensation in money; or where the

claim arises out of contract, as for goods supplied to the Crown or to the public

service”

Law of torts- Sinha

The law on this topic has been greatly changed by the Crown Proceedings Act,

1947 which came into force on January 1, 1948. It applies to torts committed on or

after February 13, 1947 (Section 12).

Section 2(1) provides as follows-“Subject to the provisions of this Act, the

Crown shall be subject to all those liabilities in tort to which, if it were a private

person of full age and capacity, it would be subject:

 VICARIOUS LIABILITY OF STATE

a) In respect of any breach of those duties which a person owes to his

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servants or agents at Common Law by reason of being their employer;

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b) In respect of any breach of the duties attaching at Common Law to the

ownership, occupation, possession or control of property.”

Section 2(2) renders the Crown liable for breach of statutory duty, provided

the duty binds persons other than the Crown, s well as the Crown itself, and that

breach of duty renders them liable in tort.

Section 2(3) provides that where functions are conferred by law directly on an

officer of the Crown, he is regarded for the purpose of the section as if he were

acting under the Crown’s instructions.

Section 2(4) gives the Crown benefit of any statute regulating or limiting the

liability of a Government Department or Crown Officer.

Section 2(5) excludes proceedings against the Crown for acts done by any

person “while discharging or purporting to discharge any responsibilities of a

judicial nature vested in him or any responsibilities which he has in connection with

the execution of judicial process.”

Subject to the reservation of certain statutory rights, Section 3 provides for

proceedings against the Crown for infringement by a Crown servant or agent, with

the authority of the Crown, of a patent, registered trade mark or copyright.

Section 4 applies to the Crown the law relating to indemnity and contribution.

Although the most important purpose of the act is to make the Crown liable

and to put him in the same position as a private person but it i quite clear that