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Vicarious Liability of the State

Common Law of England It was impossible, by reason of the maxim The King can do no wrong, to sue the Crown for the tortious act of its servant. ut it was realised in the !nited Kingdom, that that rule had become outmoded in the context of modern developments in statecraft, and "arliament intervened by enacting the Crown "roceedings #ct, $%&', which came into force on (anuary $, $%&). *ence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. +ection , -$. of the #ct provides that the Crown shall be sub/ect to all those liabilities, in tort, to which it would be sub/ect, if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, sub/ect to the other provisions of this #ct. #s already pointed out, the law applicable to India in respect of torts committed by a servant of the 0overnment was very much in advance of the Common law, before the enactment of the Crown "roceedings #ct, $%&', which has revolutionised the law in the !nited Kingdom, also. Article 300 of the Constitution of India The law in India with respect to the liability of the +tate for the tortious acts of its servants has become entangled with the nature and character of the role of the 1ast India Company prior to $)2). It is therefore necessary to trace the course of development of the law on this sub/ect, as contained in article 344 of the Constitution. Clause -$. of #rticle 344 of the Constitution provides first, that the 0overnment of India may sue or be sued by the name of the !nion of India and the 0overnment of a +tate may sue or be sued by the name of the +tate5 secondly, that the 0overnment of India or the 0overnment of a +tate may sue or be sued in relation to their respective affairs in the li6e cases as the 7ominion of India and the corresponding "rovinces or the corresponding Indian +tates might have sued or be sued, if this Constitution had not been enacted, and thirdly, that the second mentioned rule shall be sub/ect to any provisions which may be

made by an #ct of "arliament or of the 8egislature of such +tate, enacted by virtue of powers conferred by the Constitution. 1ven though more than 24 years have elapsed since the commencement of the Constitution, no law has so far been made by "arliament as contemplated by article 344, notwithstanding the fact that the legal position emerging from the article has given rise to a good amount of confusion. 1ven the /udgments of the +upreme Court have not been uniform and have not helped to remove the confusion on the sub/ect, as would be evident from what is stated hereinafter. Act of 193 1ven when the 0overnment of India #ct, $%32, was enacted, -replacing the #ct of $%$2., the same legal position was continued by section $'9-$. of the #ct, which read as follows: The ;ederation may sue or be sued by the name of the ;ederation of India and a "rovincial 0overnment may sue or be sued by the name of the "rovince, and, without pre/udice to the subse<uent provisions of this Chapter, may, sub/ect to any provisions which may be made by an #ct of the ;ederal or a "rovincial 8egislature enacted by virtue of powers conferred on that 8egislature by this #ct, sue or be sued in relation to their respective affairs in the li6e cases as the +ecretary of +tate in Council might have sued or been sued if this #ct had not been passed. Act of 191 This very provision was practically contained in section 3, of the 0overnment of India #ct, $%$2. +ub=sections -$. and -,. of that section read as follows: -$. The +ecretary of +tate in Council may sue and be sued by the name of the

+ecretary of +tate in Council, as a body corporate.

-,.

1very person shall have the same remedies against the +ecretary of +tate in

Council as he might have had against the 1ast India Company, if the 0overnment of India #ct $)2), and this #ct had not been passed. !o"ernment of India Act# 1$ $ >hen the governance of India was ta6en over by the ritish Crown in $)2), an #ct was passed in that year -#ct ,$ and ,, ?ic. ch.$49., entitled the 0overnment of India #ct, $)2), +ection 92 of that #ct declared that the 0overnment@s liability in this behalf shall be the same as that of the Company. It would be appropriate to set out the section in full: The +ecretary of +tate in Council shall and may sue and be sued as well in India as in 1ngland by the name of the +ecretary of +tate in Council as a body corporate5 and all persons and bodies politic shall and may have and ta6e the same suits, remedies and proceedings, legal and e<uitable, against the +ecretary of +tate in Council of India, as they could have done against the said Company5 and the property and effects hereby vested in *er Aa/esty for the purposes of to 0overnment of India, or ac<uired for the said purposes, shall be sub/ect and liable to the same /udgments 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. !nder the #ct of $)33 -3 and & >illiam I? ch. )2., enacted by the ritish "arliament, the governance of India was entrusted to the 1ast India Company. The #ct declared that the Company held the territories in trust for *is Aa/esty, his heirs and successors. %esultant &osition Thus, article 344 of the Constitution practically ta6es us bac6 to the #ct of $)2), which, in its turn, leads us to a consideration of the nature and extent of the liability of the 1ast India Company.

# consideration of the pre=Constitution cases -as to 0overnment@s liability in tort. begins with the /udgment of the +upreme Court of Calcutta in the case. '( ) *( Steam +a"igation Co( "s( Secretary of State The case was actually reported as an #ppendix to one of the ombay *igh Court Beports C 2 . *. C. B. #pp. ". $. # 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. *e met with an accident, caused by negligence of the servants of the 0overnment. ;or the loss caused by the accident, the plaintiff claimed damages against the +ecretary of +tate for India. +ir arnes "eacoc6 C. (. -of the +upreme Court. observed that the doctrine that the King can done wrong, had not application to the 1ast India Company. The company would have been liable in such cases and the +ecretary of +tate was thereafter also liable -*e was interpreting section 92, 0overnment of India #ct, $)2), which e<uated the liability of the +ecretary of +tate for India with that of the 1ast India Company.. Dn this holding, it was not necessary for "eacoc6 C.(. to discuss the distinction between sovereign and non=sovereign functions. ut he made a distinction between the two and observed, that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the 0overnment C e.g. if the tort was committed while carrying on hostilities or seiEing enemy property as priEe. The doctrine of immunity for acts done in the exercise of sovereign functions, enunciated in the P & O case, was applied by the Calcutta *igh Court in Nobin Chander Dey Vs. Secretary of State, -$)'3. I8B $ Cal. $. In that case, the plaintiff contended that the 0overnment had made a contract with him for the issue of a licence for the sale of gan/a and had committed breach of the contract. The *igh Court held as under: -i. -ii. Dn the evidence, no breach of contract had been proved. 1ven if there was a contract, the act was done in exercise of sovereign power and,

therefore it was not actionable. The *igh Court expressly followed the " F D ruling In Secretary of State Vs( ,ari -han.i# /1$$01 IL% 2ad( 033 , the Aadras *igh Court

held that +tate immunity was confined to acts of +tate. Turner C(, in coming to this

conclusion, pointed out that in the " F D Case -+upreme Court, Calcutta., "eacoc6 C( did not go beyond acts of +tate, while giving illustrations of situations where the immunity was available. The position was thus explained -in the Aadras case.: The act of +tate, of which the municipal courts of ritish India are debarred from ta6ing cognisance, are acts done in the exercise of sovereign power, which do not profess to be /ustified by municipal law GGwhere an act complained of is professedly done under the sanction of municipal law, and in exercise of powers conferred by that law, the fact that it is done by the sovereign powers and is not an act which could possibly be done by a private individual does not oust the /urisdiction of the civil court. It should, however, be mentioned that the Aadras /udgment in *ari han/i also adds, that the 0overnment may not be liable for acts connected with public safety -even though they are not acts of +tate.. The Aadras *igh Court re=iterated this view in Boss ?s. +ecretary of +tate, #IB $%$2 Aad. &3&. The #llahabad *igh Court too6 a similar view in Kishanchand ?s. +ecretary of +tate, -$))$., I8B , #ll ),%. *owever, in +ecretary of +tate ?s. Coc6raft, #IB $%$2 Aad %%35 I8B 3% Aad. 32, ma6ing or repairing a military road was held to be a sovereign function and the 0overnment was held to be not liable, for the negligence of its servants in the stac6ing of gravel on a road resulting in a carriage accident in/uring the plaintiff. -The more liberal approach of *ari han/i was thus slightly modified.. Vidyawati case 4 A broad a&&raoch +o far as the +upreme Court is concerned, State of %a.asthan Vs( Vidyawati# AI% 1950 SC 933 is the first post=Constitution /udgment on the sub/ect under consideration.

That was a case where the driver of a 0overnment /eep, which was being used by the Collector of !daipur, 6noc6ed down a person wal6ing on the footpath by the side of a public road. The in/ured person died three days later, in the hospital. The legal representatives of the deceased sued the +tate of Ba/asthan and the driver for compensation H damages for the tortious act committed by the driver. It was found by the court, as a fact, that the driver was rash and negligent in driving the /eep and that the accident was the result of such driving on his part. The suit was decreed by the trial court, and also by the *igh Court. The appeal against the *igh Court /udgment was dismissed by the +upreme Court. The position of law, obtaining both prior and subse<uent to $)2), the position obtaining under article 344 of the Constitution and the facts and circumstances leading to the formation of the +tate of Ba/asthan, were all reviewed by the +upreme Court in +tate of Ba/asthan ?s. ?idyawati. 6asturi Lal case *owever, a different note was struc6 by the +upreme Court itself in 6asturi Lal Vs( State of 7'# AI% 195 SC 1039. In that case, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. Dn a search of his person, a large <uantity of gold was found and was seiEed under the provisions of the Code of Criminal "rocedure. !ltimately, he was released, but the gold was not returned, as the *ead Constable in charge of the mal6hana -wherein the said gold was stored. had absconded with the gold. The plaintiff thereupon brought a suit against the +tate of !" for the return of the gold -or in the alternative. for damages for the loss caused to him. It was found by the courts below, that the concerned police officers had failed to ta6e the re<uisite care of the gold seiEed from the plaintiff, as provided by the !" "olice Begulations. The trial court decreed the suit, but the decree was reversed on appeal by the *igh Court. >hen the matter was ta6en to the +upreme Court, the court found, on an appreciation of the relevant evidence, that the police officers were negligent in dealing with the plaintiff@s property and also, that they had also not complied with the provisions of the !" "olice Begulations in that behalf. In spite of the said holding, the +upreme Court re/ected the plaintiff@s claim, on the ground that the act of negligence was committed by the police officers while dealing with the property of Balia Bam, which they had seiEed in exercise of

their statutory powers. The power to arrest a person, to search him and to seiEe 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 categoriEed as sovereign powers5 and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment5 but the employment in <uestion being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained. Suggestion in 6asturi Lal8s case *aving thus re/ected the claim, the +upreme Court made the following pertinent observations in Kasturi 8al ?s. +tate of !" -#IB $%92 +C $43%.: efore we part with this appeal, however, we ought to add that it is time that the 8egislatures in India seriously consider whether they should not pass legislative enactments to regulate and control their claim from immunity in cases li6e this, on the same lines as has been done in 1ngland by the Crown "roceedings #ct, $%&'. It will be recalled that this doctrine of immunity is based on the common law principle that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and, as such, cannot be responsible for the negligence or misconduct of his servants. #nother aspect of this doctrine was that it was an attribute of sovereignty that a +tate cannot be sued in its own courts without its consent. This legal position has been substantially altered by the Crown "roceedings #ct, $%&' -$4 and $$ 0eo. 9 c. &&.. #s *alsbury points out, Claims against the Crown which might, before $st (anuary, $%&), have been enforced, sub/ect to the grant of the royal fiat, by petition of right may be enforced, as of right and without a fiat, by legal proceedings ta6en against the Crown. That is the effect of +. $ of the said #ct. +ection , provides for the liability of the Crown in tort in six classes of cases covered by its clauses -$. to -9.. Clause -3., for instance, provides that where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been, if those functions had been

conferred or imposed solely by virtue of instructions lawfully given by the Crown. +ection $$ provides for saving in respect of acts done under prerogative and statutory powers. It is unnecessary to refer to the other provisions of this #ct. Dur only point in mentioning this #ct is to indicate that the doctrine of immunity which has been borrowed in India in dealing with the <uestion of the immunity of the +tate, in regard to claims made against it for tortious acts committed by its servants, was really based on the common law principle which prevailed in 1ngland5 and that principle has now been substantially modified by the Crown "roceedings #ct. In dealing with the present appeal, we have ourselves been disturbed by the thought that a citiEen whose property was seiEed by process of law, has to be told, when he see6s a remedy in a court of law on the ground that his property has not been returned to him, that he can ma6e no claim against the +tate. That, we thin6, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the 8egislature. -asis of the .udgment in 6asturi Lal Beverting to the basis of the /udgment in Kasturi 8al, we find that the basis was two= fold:= -a. -b. The act was done in the purported exercise of a statutory power. The act was done in the exercise of a sovereign function.

Shyam Sunder and other cases The <uestion of tort liability of the +tate has arisen in other cases also C including +hyam +under ?s. +tate of Ba/asthan. ut we do not thin6 it necessary to encumber this Chapter with a discussion thereof. The two /udgments of the +upreme Court which have been dealt with above C namely, ?idyawati and Kasturi 8al, C should suffice, to illustrate the competing approaches. S*VE%EI!+ A+9 +*+:S*VE%EI!+ ;7+C<I*+S

7istinction between sovereign and non sovereign functions C Iagendra Bao case This distinction between sovereign and non=sovereign functions was considered at some length in I. Iagendra Bao ?s. +tate of #" -#IB $%%& +C ,993.5 -$%%&. 9 +CC ,42. #ll the earlier Indian decisions on the sub/ect were referred to. The court enunciated the following legal principles, in its /udgment: In the modern sense, the distinction between sovereign or non=sovereign power thus does not exist. It all depends on the nature of the power and manner of its exercise. 8egislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and sub/ects carved out for it. +imilarly, the executive is free to implement and administer the law. # 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 ma6ing the law. Ior can the 0overnment, in exercise of its executive action, be sued for its decision on political or policy matters. It is in -the. public interest that for acts performed by the +tate, either in its legislative or executive capacity, it should not be answerable in torts. That would be illogical and impracticable. It would be in conflict with even modern notions of sovereignty. The court in the above case suggested the following tests C Dne of the tests to determine if the legislative or executive function is sovereign in nature is, whether the +tate is answerable for such actions in courts of law. ;or instance, acts such as defence of the country, raising -the. armed forces and maintaining it, ma6ing peace or war, foreign affairs, power to ac<uire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to /urisdiction of ordinary civil court. Io suit under Civil "rocedure Code would lie in respect of it. The +tate is immune from being sued, as the /urisdiction of the courts in such matters is impliedly barred. The court proceeded further, as under:

ut there the immunity ends. Io civiliEed system can permit an executive to play with the people of its county 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. Io legal or political system today can place the +tate above -the law. as it is un/ust and unfair for a citiEen to be deprived of his property illegally by negligent act of officers of the +tate without any remedy. ;rom sincerity, efficiency and dignity of -the. +tate as a /uristic person, propounded in nineteenth century as sound sociological basis for +tate immunity, the circle has gone round and the emphasis now is more on liberty, e<uality and the rule of law. The modern social thin6ing of progressive societies and the /udicial approach is to do away with archaic +tate protection and place the +tate or the 0overnment on a par with any other /uristic legal entity. #ny watertight compartmentaliEation of the functions of the +tate as sovereign and non=sovereign or governmental and non=governmental is not sound. It is contrary to modern /urisprudential thin6ing. The need of the +tate to have extraordinary powers cannot be doubted. ut with the conceptual change of statutory power being statutory duty for -the. sa6e of society and the people, the claim of a common man or ordinary citiEen cannot be thrown out, merely because it was done by an officer of the +tate5 duty of its officials and right of the citiEens are re<uired to be reconciled, so that the rule of law in a >elfare +tate is not sha6en. The court emphasised the element of >elfare +tate in these words: In -a. >elfare +tate, functions of the +tate are not only defence of the country or administration of /ustice or maintaining law and order, but it extends to regulating and controlling the activities of 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 /ustice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional 0overnment, the +tate cannot claim any immunity. The Court lin6ed together the +tate and the officers:

The determination of vicarious liability of the +tate being lin6ed with -the. 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 +tate cannot be sued. 7ncertainty of the law It would be evident from the Iagendra Bao and other case law on the sub/ect, that definiteness of the precise contours and certainty of principles of universal application are lac6ing. >hile holding that the distinction between sovereign powers and non=sovereign powers has become academic in the present day >elfare +tate, the court in Iagendra Bao -with respect. again affirms and accepts the theory of primary and inalienable functions. Dne can understand the difficulty faced by the ench in Iagendra Bao@s case. It was a ench of two /udges, whereas Kasturi 8al@s case was decided by a Constitution ench of five /udges. -Df course, ?idyawati was also decided by a Constitution ench of five /udges.. There is a manifest conflict of /udicial decisions. In theory, the dividing line between sovereign and non=sovereign functions is the criterion of liability. ut there are serious disparities in the stance adopted by various courts in this regard. Courts themselves have expressed their uneasiness about this test and about the difficulties in its practical application= particularly in Kasturi 8al case and I. Iagendra Bao case. <he &resent state of the law ;rom the brief discussion of the present state of the law relating to liability of the +tate in tort in India, it is apparent that the law is neither /ust in its substance, nor satisfactory in its form. It denies relief to citiEens in/ured by a wrongful act of the +tate, on the basis of the exercise of sovereign functions C a concept which itself carries a flavour of autocracy and high=handedness. Dne would have thought that if the +tate exists for the people, this ought not to be the position in law. # political organisation which is set up to protect its citiEens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather them denounce such liability. 1xceptions can be made for

exceptional cases C but the exceptions should be confined to genuinely extraordinary situations. CASES I+V*LVI+! ;7+9A2E+<AL %I!,<S

The constitutional /urisdiction as to fundamental rights #t this stage, it would be appropriate to refer to a development which is parallel to the evolution of the law applicable to actions in tort. This is the development concerning the violation of fundamental rights. #s is a apparent from certain comparatively recent decisions, where monetary redress is sought by a person against the +tate for the violation of fundamental rights, courts now do not approach the matter purely from the point of view adopted in the traditional tort litigation. +ince the Constitution guarantees not only fundamental rights, but also the right to see6 a remedy for the violation of such rights, the redress cannot be curtailed or thwarted by fetters applicable to ordinary litigation. That has been the /udicial trend. %udal Shah V( State of -ihar +eelabati -ehra V( State of *rissa Chairman# %ailway -oard V Chandrima 9as *ther cases