Vicarious Liability of the State under law of Torts

 

  1. Introduction

Article 300(1) of the Constitution provides –

  • that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State;
  •  that the Government of India or the Government of a State may 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 or be sued, “if this Constitution had not been enacted”, and
  • thirdly, that the second mentioned rule shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution.

The ever increasing abuse of power by public authorities and interference with life and liberty of the citizens arbitrarily, coupled with transformation in social outlook with increasing emphasis on human liberty resulted in more pragmatic approach to the individual’s dignity, his life and liberty and carving out of an exception by the court where the abuse of public power was violative of the constitutional guarantee. The Law Commission of India, in its very First
Report (Liability of the State in Tort), submitted in April 1956 presented certain general outlines of the proposals for legislation.

2. Position before  independence

In Peninsular & Oriental Steam Navigation Co. v. Secretary of State for India, the Supreme Court of Calcutta, on a reference made by the Subordinate Judge, on the liability of the State for negligence of its officers, Chief Justice Peacock held that since East India Company was not a sovereign, its liability for negligence of its officers would be same as of an employer for acts of its employee. Sir Barnes Peacock C. J.  observed that the doctrine that the “Kingcan done wrong”, had no application to the East India Company. The company would have been liable in such cases and the Secretary of State was thereafter also liable.

In Nobin Chunder Dey v. Secretary of State of India,(1876) ILR 1 Cal 12, the English principle of sovereign immunity. of the Crown was applied and plaintiff’s claim for recovery of damages against the State for non- issuing of the excise pass and in the alternative for the refund of the auction money was rejected as it was an act done by the Government in the exercise of sovereign power of the State.

This decision and its application in numerous cases led to the denial of relief to citizens and different principles were evolved.

Thus, the East India Company was immune from being sued in courts only in those limited cases where its activities were political and mainly in relation to the Indian State. It did not enjoy any sovereign immunity like the Crown in England.

3. Position between 1950-1990

It was not till 1962 that an occasion arose for this Court to examine the tortuous act by a servant of the State and whether a citizen who was wronged by it was entitled to claim compensation.

In the case of State of Bihar v. Abdul Majid, AIR 1954 SC 245 Apex Court has recognized the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution.

State Of Rajasthan vs Mst. Vidhyawati And Another, AIR 1962 SC 933

The driver of a government vehicle while driving the jeep along a public road knocked down a person who was walking on the footpath by the side of the public road in Udaipur city causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later in the hospital where he had been removed for treatment. The suit of his widow, minor daughter and mother was decreed, on the finding that the driver was guilty of negligence. But the decree was granted against the driver only.

There should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer.

Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039,

It is time that the Legislatures in India seriously consider whether they should not pass legislative enactments to regulate and control their claim of immunity in cases like this on the same lines as has been done in England by the Crown Proceedings Act, 1947.

In Pushpa Thakur v. Union of India, AIR 1986 SC 1199 the Hon’ble Supreme Court while reversing a decision of the Punjab & Haryana High Court held that where the accident was caused by the negligence of the driver of the military truck the principle of sovereign immunity was not available to the State.

4. Position after N.Nagendra Rao & Co. case
In N.Nagendra Rao & Co vs State Of A.P., AIR 1994 SC 2663

The Apex Court held that the appeal succeeds and allowed. The judgment and order of the High Court is set aside and that of the trial court decreeing the suit of the appellant is restored with costs.

Observations

It observed as under –

  • Sovereign immunity as a defense was never available where the State was involved in commercial or private undertaking nor it is available where its officers are guilty of interfering with life and liberty of a citizen not warranted by law. In both such infringements, the State is vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. (Para 13)
  • The shadow of sovereign immunity still haunts the private law, primarily, because of the absence of any legislation. (Para 13)
  • The doctrine of sovereign immunity has no relevance in the present-day context when the concept of sovereignty itself has undergone a drastic change. (Para 15)
  • ‘Sovereignty’ and “acts of State” are thus two different concepts. The former vests in a person or body which is independent and supreme both externally and internally whereas latter may be an act done by a delegate of sovereign within the limits of the power vested in him which cannot be questioned in a Municipal Court. The nature of power which the Company enjoyed was the delegation of the “act of State”. An exercise of political power by the State or its delegate does not furnish any cause of action for filing a suit for damages or compensation against the State for the negligence of its officers. (Para 19)
  • The modem sense the distinction between sovereign or nonsovereign power thus does not exist. It all depends on the 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 a 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 a court of law for negligence in making the law. Nor can the Government in the exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts performed by the State either in its legislative or executive capacity it should not be answerable in torts. That would be illogical and impractical. It would be in conflict with even modem notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in courts of law. For instance, acts such as the defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, the power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction of an ordinary civil court. No suit under Civil Procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the courts in such matter is impliedly barred. (Para 24)
  • Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound. 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 determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued.  (Para 25)
  • For more than hundred years, the law of vicarious liability of the State for the negligence of its officers has been swinging from one direction to other. The result of all this has been the uncertainty of the law, multiplication of litigation, waste of money of common man and energy and time of the courts. (Para 34)

The above cases show that the judgments of the Supreme Court have not been uniform with regard to Article 300. There is scope for the enactment of statutory provision

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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