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VICARIO

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

1. Jhnbkh

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Index

VICARIOUS LIABILITY OF STATE

VICARIOUS LIABILITY OF STATE


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List of cases

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
3. Secretary of State for India in Council v. Hari Bhanji I.L.R. 1 Cal. 11.
4. Rup Ram v. The Punjab State A.I.R. 1961 Punjab 336.
5. Vidyawati v. Lokumal A.I.R. 1957 Raj. 305.
6. Headmistress, Govt. Girls High school v. Mahalakshmi A.I.R. 1998 Mad. 86.
7. Shyam Sunder v. The State of Rajasthan A.I.R. 1964 S.C. 890.
8. Secretary of State v. Cockraft A.I.R. 1915 Mad. 993. (1916) I.L.R. 39. Mad.
351.
9. Baxi Amrik Singh v. Union of India (1973) 75 P.L.R. 1.
10.

Satyawati Devi v. Union of India A.I.R. 1967 Delhi 98.

11.

Union of India v. Bhagwati Prasad Mishra A.I.R. 1957 Madh. Pra. 159.

12.

Mohammad Murad v. Govt. of U.P. A.I.R. 1956 Allahabad 75.

13.

Shyamal Baran Saha v. State of West Bengal A.I.R. 1998 Cal. 203.

14.

State of M.P. v. Shantibai 2005 ACJ 313 (M.P.).

15.

Ramjan v. State of Rajasthan A.I.R. 2008 (NOC) 2168 (Raj.).

16.

Chairman, Railway Board v. Chandrima Das A.I.R. 2000 S.C. 988.


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Introduction

VICARIOUS LIABILITY OF STATE

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 others 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.

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POSITION IN ENGLAND

VICARIOUS LIABILITY OF STATE

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
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

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


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

VICARIOUS LIABILITY OF STATE


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enacted by virtue of powers conferred on that legislature by this Act, sue or be sued
in relation to their respective affairs in the like cases as the Secretary of State in
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 governments 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.

6 Act 21 and 22 Vic. Ch. 106

VICARIOUS LIABILITY OF STATE


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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.

Resultant position
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


The case 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, (1873) ILR 1 Cal. 1. In that case, the plaintiff
contended that the Government had made a contract with him for the issue of a

7 3 and 4 William IV ch. 85

VICARIOUS LIABILITY OF STATE

held as under:

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licence for the sale ganja and had committed breach of contract. The High Court

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.

idjuewjs
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

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Law of torts- Sinha

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VICARIOUS LIABILITY OF STATE

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:
a) In respect of any breach of those duties which a person owes to his
servants or agents at Common Law by reason of being their employer;
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 Crowns 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

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VICARIOUS LIABILITY OF STATE