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CHANAKYA NATIONAL LAW UNIVERSITY

GOVERNMENT LIABILITY ON TORTS

SUBMITTED TO: SUBMITTED BY:

DR.ALI MOHAMMAD SAGARIKA SWAPNIL

(FACULTY OF ADMINISTRATIVE LAW) ROLL NO.: 1367, B.A.LLB(HONS.)

SEMESTER-VI
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Contents
DECLARATION OF CANDIDATE ............................................................................................................ 3
INTRODUCTION ........................................................................................................................................ 5
INTRODUCTION: CONCEPT GOVERNMENT LIABILITY ON TORTS .............................................. 7
GOVERNMENT LIABILITY ON TORTS IN INDIA .............................................................................. 10
GOVERNMENT LIABILITY ON TORTS IN VARIOUS COUNTRIES ................................................ 16
CONCLUSION ........................................................................................................................................... 19
BIBLIOGRAPHY: ...................................................................................................................................... 21
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DECLARATION OF CANDIDATE

I HEREBY DECLARE THAT THE WORK REPORTED IN THE B.A.LL.B (HONS.)

PROJECT REPORT ENTITLED “GOVERNMENT LIABILITY ON TORTS”,
SUBMITTED AT CHANAKYA NATIONAL LAW UNIVERSITY, PATNA AS
AUTHENTIC RECORD OF MY WORK CARRIED OUT UNDER THE SUPERVISION
OF DR.ALI MOHAMMAD. I HAVE NOT SUBMITTED THIS WORK ELSEWHERE
FOR ANY OTHER DEGREE OR DIPLOMA. I AM FULLY RESPONSIBLE FOR THE
CONTENTS OF MY PROJECT REPORT.

SAGARIKA SWAPNIL

CHANAKYA NATIONAL LAW UNIVERSITY

12/04/2018
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ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have

ever faced. Though this project has been presented by me but there are many
people who remained in veil, who gave their all support and helped me to
complete this project.

First of all I am very grateful to my subject teacher Dr. Ali Mohammad,

without the kind support of whom and help the completion of the project was
a herculean task for me. He donated his valuable time from his busy schedule
to help me to complete this project and suggested me from where and how to
collect data.

I am very thankful to the librarian who provided me several books on this

topic which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice

which was very useful and could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot.

I thank all of them!

SAGARIKA SWAPNIL

ROLL NO.:1367, B.A.LLB (HONS.), SEMESTER-VI

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INTRODUCTION
The rapid growth of public services and functions in most countries, the large number of persons
engaged in the civil service or in the military forces, and the increase in the number of risks
brought about by mechanisms such as the automobile, the airplane, and other methods of
transportation, mean that an ever-increasing number of persons will suffer injuries resulting from
governmental acts and operations. A problem of great importance, then, is that of the
responsibility of the state and its agents for such injuries.

No two countries have solved their problem of responsibility in the same way. This is due largely
to the historical circumstances under which the systems have been developed. An attempt will be
made in this paper to summarize the ways in which the responsibilities of the state and its agents
for tort are solved in England, the United States, Germany, and France, and India

Responsibility will be examined in these various countries, so far as possible, as it exists in the
three chief units of government (central, state or regional, and local). Some attention will then be
given to the responsibility of officers.

RESEARCH METHODOLOGY:

“GOVERNMENT LIABILITY ON TORTS” is one of the topics which will need doctrinal
research through books related to Administrative law. This will require the researcher to
access CNLU library and various authenticated websites on internet for related enactments
and cases. The researcher also have to take care and proper guidance from the concerning
faculty.

 AIMS AND OBJECTIVES:

To find out:

i. What is “Government liability”?

ii. Liability of state government and local authority?
iii. The laws related to torts and contemporary problems.

 HYPOTHESIS:
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i. The main object and the sole purpose of the ‘Law of Torts’ is to provide compensation to
those whose legally protected interest has been violated by the wrongdoer.
ii. The immunity of the State from suit in tort has gradually been accepted as an appendix of
unaccountable monarchy which is contrary to the notion of a responsive state.
iii. The concept of Sovereignty has also undergone a change and the doctrine of Sovereign
immunity which was developed as a status oriented doctrine, suits no more to the
democratic values.

 SOURCES OF DATA COLLECTION:

All the books related to Administrative law, internet and proper guidance by our concerning
faculty.
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INTRODUCTION: CONCEPT GOVERNMENT LIABILITY ON TORTS

The common law and the political theory underlying both British and American constitutional
law have been regarded as a bulwark of protection to the individual in his relations with the
Government. The "rule of law" which Dicey and others extol is designed by judicial control to
restrict within the bounds of legality the operation of the governmental machine in its contact
with the citizen.

Yet it requires but a slight appreciation of the facts to realize that in Anglo-American law the
individual citizen is left to bear almost all the risks of a defective, negligent, perverse or
erroneous administration of the State's functions, an unjust burden which is becoming graver and
more frequent as the Government's activities become more diversified and as we leave to
administrative officers in even greater degree the determination of the legal relations of the
individual citizen.

Obviously the Administration cannot be held to the obligation of guaranteeing the citizen against
all errors or defects, for life in an organized community requires a certain number of sacrifices
and even risks. The unexampled expansion of the police power in the United States daily
illustrates the uncompensated sacrifices to which the individual is exposed by the rightful
operation of the State's public powers. Yet there is no reason why the most flagrant of the
injuries wrongfully sustained by the citizen, those arising from the torts of officers, should be
allowed to rest, as they now generally do, in practice if not in theory, at the door of the
unfortunate citizen alone. This hardship becomes the more incongruous when it is realized that it
is greatest in countries like Great Britain and the United States, where democracy is assumed to
have placed the individual on the highest plane of political freedom and individual justice. When
Justice Miller of the United States Supreme Court remarked in Gibbons v. United States 1' that
"no government has ever held itself liable to individuals for the misfeasance, laches or
unauthorized exercise of power by its officers or agents," his horizon was extremely limited, for
he overlooked the fact that practically every country of western Europe has long admitted such
liability. There seems no sound reason why the English-speaking countries, where the public
service is -usually in less professional hands than on the continent, should not adopt modern
social and legal principles in determining the legal relations between the Government in its

1
(1868, U. S.) 8 Wall. 269.
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administration of the public services, the officers and agents whom it employs for this service,
and the individual members of the community.

It was Lord. Macaulay who remarked that" the primary end of Government is the protection of
the people and_ property of men." The reason for this long-continued and grooving injustice in
Anglo American law rests, of course, upon a medieval English theory that "the King can do no
wrong," which without sufficient understanding was introduced with the common law into this
country, and has survived mainly by reason of its antiquity2.

The facts that the conditions which gave it birth and that the theory of absolutism which kept it
alive in England never prevailed in this country and have since been discarded by the most
monarchical countries of Europe, have nevertheless been unavailing to secure legislative
reconsideration of the propriety and justification of the rule that the State is not legally liable for
the torts of its officers. To be sure, we profess to ease the conscience by according the injured
individual an action against the wrong-doing officer-frequently a person without pecuniary
responsibility-or else, under our decentralized system of administration, by permitting an action
against political subdivisions of the State ‘and local bodies and corporations for injuries inflicted
when acting in their "private" or "corporate" as distinguished from their "governmental"
capacities. But no serious effort has been made to penetrate the mysticism encumbering this
department of the law and to relieve it of its theological and metaphysical conceptions and
misconceptions.

Realization, spasmodically by the courts, and occasionally in particular cases by legislatures, of

the unwarranted hardship often worked by the rule that the State is not liable for the torts of its
officers, and the desire to square the demands of justice with the maintenance of a legal
anachronism canonized as a legal maxim, have brought about the result, by the introduction of
fictions, artificial distinctions and concessions to expediency, that the law governing the redress
of the individual against the public authorities, national, State, or municipal, for injuries
sustained in the exercise of governmental powers, is in a state of incongruity and confusion

2
That this maxim was misunderstood even by Blackstone and Coke, see the excellent monograph of Ludwig
Ehrlich, Proceedings against the Crown (192i) 42-49, The maxim merely meant that the King was not privileged to
do wrong. -if his acts were against the -law, they were injuriae (wrongs). Bracton, while ambiguous in his several
statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of
committing a legal wrong. Ehrlich, op. cit., 43. . Indeed, there-appears to have been a considerable measure of
redress obtainable, though_ not damages. Ibid. 44-46.
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unique in history. The hazards run by the administrative officer who may have acted in perfect
good faith, and by the private individual, illustrated in such cases as Miller v. Hortons3 and Little
v. Barreme4, manifest defective social engineering-to use Roscoe Pound's term-hardly creditable
to an enlightened community. The injustice of the prevailing rule is recognized in England, and a
movement for the reform of the law in this respect is now in progress5.

The difficulty, of course, lies in the fact that we consider ourselves bound by the fetters of a
medieval doctrine, often regarded as having the institutional impregnability of an article of faith,
which never had much, if any, justification, and that legislatures have been unwilling to
reexamine the whole subject from the point of view of theory and history, in order to bring the
law into harmony with the practical exigencies of modern life. Such an attempt these articles
propose to make. In the course of the work, effort will be directed to pointing out the anomalies
and paradoxes in the present state of the law, the present lack of theoretical justification for the
prevailing doctrine of irresponsibility, the theories on which the responsibility of the State has
been justified, the history of the doctrine of responsibility, and the state of the law in continental
Europe.

With this exposition, it is hoped that it will have been demonstrated that justice and a respect for
the rights of the individual demand that Government, national, state and municipal, shall now
adopt the necessary legislation to admit the legal responsibility of the State or city for the torts of
its officers. At best, that liability will not be unlimited, and an attempt will be made to indicate,
the appropriate bounds of the proposed doctrine. If the reader should become convinced that the
most flagrant and tortuous of the invasions of the rights of the individual by act of public
authority justify, not an individual sacrifice, but a distribution of the burden among the
community at large, it may become possible to suggest an acceptable social and legal theory
upon which many sacrifices and burdens now right fully imposed under the police power would
more equitably be distributed under the power of eminent domain.
3
"Miller v. Horton (1891) 152 Mass. 54o, 26 N. E. ioo. Here health officers, experts, concluding after investigation
that a horse was afflicted with glanders, ordered its destruction, and were later held liable in damages for what a jury
found to be a mistaken conclusion of fact.
4
Little v. Bfarreme (1804, UI. S.) 2 Cranch, 17o; Elmore v. Fields (19o7) 153 Ala. 345, 45 So, 66
5
'See W. S. Holdsworth in (1922) 38 L. QUART. REV. 295. See Ministry of Transport Act (1919) 9 & io Geo. V, c.
5o, sec. 26 which provides that "the Minister . . . . shall be responsible for the acts and defaults of the officers and
servants and agents of the Ministry in like manner and to the like extent as if they were his servants." See also
Ministry of Munitions and Shipping (Cessation) Act Igzf discussed in Marshal Shipping Co., Ltd. v. Board of Trade
(1923, C. A.) 39 T. L. R 415.
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GOVERNMENT LIABILITY ON TORTS IN INDIA

The main object and the sole purpose of the ‘Law of Torts’ is to provide compensation to those
whose legally protected interest has been violated by the wrongdoer. It is not the creation of a
statute in India, but it is the product of the Common Law of England, which has evolved behind
the screen of judicial decisions. In the absence of any specific legislation, usage or custom on a
particular issue, the British Courts in India applied the Common Law principles on the touch
stone of justice, equity and good conscience. During the British rule the successive constitutional
enactments contained the provision for State’s liability. After India became Republic its new
Constitution also contained certain provisions fixing State’s liability for torts committed by
public servants. The present study entitled “Tortious Liability of the State in India” deals with
that part of civil law of our country which considers certain wrongs on the part of the servants of
the State to be ‘torts’ and prescribes the remedy of ‘damages’ to the victims of such wrongs.

 IMPORTANCE OF THE PROBLEM

The Law relating to State’s liability for the wrongs committed by its servants during the course
of their employment has acquired a great importance with the emergence of the welfare State.
The problem of State’s liability was simple during the days of Laissez-faire, for the limited
activities of the State officials rarely infringed the rights of the individuals. Neither the positive
interference of the State with the individual in his own interest nor the State’s operation of
economic activities was considered justified. Owing to unemployment and depression Laissez-
faire theory could not be sustained in the 20th century.

It gradually paved the way for the emergence of the concept of 'Welfare State" 6 which is wedded
to the principle of general happiness and welfare of the people. As the notion of modern State
has changed from Police to Service State and the State has become a dominant factor in the socio
- economic reconstruction of the society, there is a great concentration of power and resources at
the disposal of the State in the administration of big public corporations, factories and various
multipurpose irrigation and hydro electrical power projects. There is, thus, a persistent increase
in the activities of the State, most of which have no relation to the so called sovereign functions

6
The term 'welfare State' is of a recent origin. Until 1955 it was not included in the oxford English dictionary.
Primary literature on the 'welfare State’ is to be found in Sir William Beveridge's Report on social insurance and
allied services [1942]; Full Employment in Free Society [1944] and Voluntary Action [1948],
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of the State. As a part of its administrative functions the modern welfare State began to regulate
the personal liberty and property rights of its subjects. Eventually, the arbitrary and negligent
actions of the instrumentalities of the State were questioned before the courts. The immunity of
the State from suit in tort has gradually been accepted as an appendix of unaccountable
monarchy which is contrary to the notion of a responsive State. It has been well accepted that
Law is no more confined to the “Command” of the “Sovereign”, but it is a technique of “social
engineering”.

The concept of Sovereignty has also undergone a change and the doctrine of Sovereign immunity
which was developed as a status oriented doctrine, suits no more to the democratic values. Power
and responsibility should go hand in hand is the accepted jurisprudential philosophy of the day.
While the doctrine of State’s responsibility in tort has been accepted and introduced in the
British law and in many other Common Law Countries including the United States of America,
no change in Indian Law has taken place even 50 years after it became independent. The
Common Law disparity between a private individual and the Crown in their capacity as
employers, where the former is held liable for the wrongs of his servant committed during the
course of employment and the latter exempted from liability because of the twin maxims the
'King can do no wrong’ and the ‘Crown could not be sued in his own courts’ has been abrogated
by the Crown Proceedings Act, 1947.

The Act has gone a long way and has abolished most of the Crown immunities. In the United
States, the principle of immunity of the Federal Government as a Sovereign which was imported
from England has been curtailed by the Federal Tort Claims Act, 1946. The Anglo-American
jurisprudence treats the State for the purpose of litigation as nearly as possible in the same way
as a private person of full age and capacity and does not allow different standards of conduct for
the people and the public bodies. In the French system the doctrine of Sovereign t immunity of
State irresponsibility, has been replaced by a broad principle of State liability in all cases where
citizen is inflicted with an injury by the administrative action. The maxim that the ‘King can do
no wrong’ has been superseded by the maxim that the ‘State can do wrong’ and as an honest
person, it will seek to repair damages caused by its wrongful acts and will not try to shirk its
liability by taking refuge behind any dogma of Sovereign immunity.
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It is significant to note that in ancient India, unlike the Anglo-American and French systems, the
rule of Dharma7 a concept wider than the modern rule of law prevailed. Under the rule of
Dharma the King was not only held responsible for his own deeds but

made accountable for any violation perpetrated by any other person within his administration.
The Muslim polity which was based on the concept of the supremacy of the Islamic Law, before
whom the ruler and the ruled were equal, allowed subjects to sue monarchs in ordinary courts of
law. The rulers were, thus, made accountable for the wrongful acts of their servants. Thus, both
the Hindu and l the Muslim legal systems never regarded sovereign as the fountain of law but
treated them nearly as the fountain of justice. But, unfortunately, the steel frame of the British
rule, unconcerned with this ancient practice, introduced their Common Law rule of Sovereign
Immunity into our country.

Eventually, the advent of the British rule in India moulded the Indian legal history in a different
direction and the Common Law Sovereign Immunity mistakenly introduced by the courts still
continues. The dual role of the East India Company as a trader and a ruler further contributed to
the inconsistency and confusion in the law of tortious liability of the State. Strangely, section 65
of the Government of India Act, 1858 incorporated the same liability in suits against the
secretary of State for India as had been of the East India Company. It is pertinent to note that the
liability of the East India Company was not laid down anywhere and it has to be gathered from
the conflicting decisions recorded here and there.

The judicial construction of the legislative provisions on the stated liability added to the miseries
of the victims of the State wrongs, Peacock, C J. in P and 0 steam Navigation8 case laid down the
doctrine based on the distinction between sovereign and non-sovereign functions for the purpose
of determining the liability of the State. The extreme application of the doctrine was witnessed in
the case of Nobin Chunder Dey9.

7
The term 'welfare State' is of a recent origin. Until 1955 it was not included in the oxford English dictionary.
Primary literature on the 'welfare State’ is to be found in Sir William Beveridge's Report on social insurance and
allied services [1942]; Full Employment in Free Society [1944] and Voluntary Action [1948].
8
Peninsular and oriental steam navigation company V. Secratary of State for India. 5 Bom.H.C.R.AppA.p.1 11861)
9
Nobin Chunder Dey V. The Secretary of State for India. I.L.R.1. Cal.11 (1875)
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However, undeterred by the ruling of Navigation Case, Turner, C.J. in Hari Bhanjis 10, put the
Government liability in its right perspective, when he observed that where an act complained
against is done under the sanction of Municipal Law and does not amount to an act of State, the
fact that it is done by the Sovereign Power and is not an act which could be possibly done by a
private individual does not oust the Jurisdiction of the court. Unfortunately the Hari Bhanji
ruling has remained unnoticed by the courts in their subsequent pronouncements on the subject.
The successive Constitutional enactments of 1915, 1919 and 1935 passed during the British rule
in India carried the provision of the Act of 1858 in them.

After India became republic, the new Constitution envisaged a social order in which social and
economic justice is to be secured to all the citizens. The concept of the ‘Welfare State’ has been
spelt out in part-IV of the Constitution and the State is directed to secure a social order for
promoting the well-being of the people.

The State has, therefore, assumed many more responsibilities and has practically extended to
almost all walks of individual’s life. The extension of Governmental activities is balanced by the
removal of the immunities of Government, and of the Public authorities from the legal
responsibilities corresponding to that of private subjects in similar circumstances. However,
Article 300 of the Constitution of India, which inter alia deals with the extent of State’s liability
instead of removing the immunity of the State, preserves the refer back approach. In the
beginning the judicial interpretation of the provision has also been most unsatisfactory.

The obiter of Navigation case has worked as a springy precedent and the Sovereign and
commercial distinction between Governmental functions remained uncertain. The supreme court
of India in Vidhyawati11 deviating from Navigation ruling observed. “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”. The court also Stated: “Now that we have by our Constitution established a
Republican Form of Government and one of the objectives is to establish a socialistic State with
its varied industrial and other activities, employing a large army of servants, there is no
justification in principle or in public interest, that the State should not be held liable vicariously

10
Secretary of State for India V. Hari Bhanji, I.L.R.5 Mad.273(1882)
11
State of Rajasthan V. Smt.Vidhyawathi, A.I.R. 1962 S.C.933
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for the tortious acts of its servant”. The possibility of Vidhyawathi decision becoming the
precursor of a new trend in the area of State’s liability was curtailed in less than 3 years by the
Supreme Court in Kasturilal12. The decision of the court in Kasturilal apparently endorsed the
much debated distinction between Sovereign and non-Sovereign functions of the State, in
deciding liability, which was not applauded all over the country. Gajendragadkar CJ. He said that
the law as he laid down in Kasturilal should not claim to be perpetuated. The sooner it was done
away the better it would be.

The gravity of the situation was, infact realized by the Law Commission of India much earlier
and its very First Report in 1956 pointed out the need for legislation on the State’s liability for
torts on the lines of the Crown Proceedings Act, 1946 in England. But the most disappointing
aspect is that the Government (Liability in Tort) Bill prepared on the lines of the Law
Commission’s recommendations and introduced in the parliament twice in 1965 and 1967 was
allowed to lapse and there is yet no sight of reintroduction of the same. However, the Indian
Judiciary, in recent years, began to device new methods to make the State accountable for its
lawlessness.

The remarkable point to be noted is that the Supreme Court in Rudal shah13 for the first time
used writ jurisdiction under Article 32 of the Constitution to award compensation to the victims
of State wrong. SAHELI14 is another bold decision of the Supreme Court to pay compensation in
case of death due to police atrocities.

The Bhopal Gas leak disaster and its aftermath has emphasized the need for laying down certain
norms that the State must follow before granting license for the running of Industries dealing
with materials which are of dangerous potentialities. The new strategy adopted by the judiciary
in Rudal shah has reached new heights in Nilabati Behera, wherein, the apex court held that the
award of compensation in proceedings under Articles 32 and 226 of the Constitution is a remedy
available in public law based on strict liability for contravention of fundamental rights to which
the principle of Sovereign Immunity does not apply even though it may be available as a defense
in private law in an action based on tort. Likewise in Nagendra Rao the Supreme Court held that

12
Kasturilal V. State of U.P. A.I.R. 1965 SC 1039
13
Rudal shah V. State of Bihar, A.I.R. 1983 SC. 1086
14
SAHELI - A Women's Resources Centre V. Commissioner of Police, Delhi, A.I.R., 1990 SC 513
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in the context of modern concept of sovereignty the doctrine of sovereign immunity stands
diluted and the distinction between sovereign and non-Sovereign functions no longer exists.
These new and welcoming trends in the area of State liability prompted the present research into
“Tortious Liability of the State in India” for an in-depth study.
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GOVERNMENT LIABILITY ON TORTS IN VARIOUS COUNTRIES

 ENGLAND

In the United Kingdom, for many years, the Crown was not suable for the torts of its servants
because of the acceptance of the feudal maxim "the king can do no wrong". But this immunity in
tort never extended to its servants. The officials were personally liable for any injury for which
they could not produce legal authority.

But the aggrieved persons found it impossible to recover damages from Government servants
personally because the latter might not be in a position to pay compensation. So serious
discussion and protest arose against the immunity of the Crown. Consequently the Crown
Proceedings Act 1947 was passed making the Crown freely suable in torts. Under the Crown
Proceedings Act, the extent of the liability of the Crown is the same as that of a private person of
full age and capacity15 and it leaves untouched the personal liability of the Crown servants
except in certain cases concerning armed forces. The principle evolved by the law is that where a
servant of the Crown commits a tort in the course of his employment, the servant and the Crown
are jointly and severally liable. But the extent of vicarious liability imposed by the law is not
absolute because of the exemption clauses. Accordingly judicial functions, execution of judicial
process, post office, armed forces etc. are exempted from the purview of the law.

 USA

In U.S.A. also the English doctrine of sovereign immunity was applied to protect the
Government from suits relating to the torts of its employees. However, this immunity was not
shared by the officers of the Government except the judicial officers. The result was that talented
men were dissuaded from entering the Government service due to the fear of accountability.
Further, the remedy by way of personal liability was futile where the official doing a wrong was

15
The nature of the Crown's liability under the Crown Proceedings Act is best illustrated in Home Office v. Dorset
Yacht Company Ltd., [1970] 2 All E.R. 294. In that case ten borstal trainees working in an Island under the control
of three officers, escaped during night and set in motion a yacht which collided with, and damaged, another yacht
belonging to the respondents. The court found that the officers failed to discharge a duty of care which they owed to
the respondents. The damage done by the trainees to the respondents ought to have been foreseen by the borstal
officers as likely to occur if they failed to exercise proper control of supervision. The Home Office was held
vicariously liable under the Crown Proceedings Act.
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not financially sound enough to pay adequate compensation to the aggrieved party. The United
States found a solution to these problems by enacting the Federal Tort Claims Act 1946 which
set aside a major chunk of sovereign immunity. The law made the United States liable for tort
claims in the same manner and to the same extent as a private individual under like
circumstances.

However it provides a number of exceptions in which liability can be evaded. Most of these
exceptions 'exempt specific administrative functions or agencies in addition to all claims arising
in a foreign country. Moreover, it is provided that there is no liability for intentional torts. Thus
jurisdiction of the courts is denied over any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit or interference with contract rights. Thus the aim of State liability
which is sought to be achieved by the Act is considerably weakened by evading liability in
deserving cases through the exemption clauses provided therein in the law16. A So there is no
need to limit the scope of these exceptions by judicial interpretation or by amending the Act.

 FRANCE

In France the ideas of French Revolution led to the conviction that sovereign responsibility
should replace the out mode concept of sovereign infallibility. There, the administrative courts
have jurisdiction to annul illegal administrative acts or award damages against the administration
when a citizen is injured by an administrative act. This is done on the basis of two principles
which the Conseil d' Etat evolved - legalite' and `responsibilite'17.

According to the former the administration must act in accordance with the law. As per the latter
the administration will be responsible to indemnify the citizens whose rights are infringed
through any unlawful act on its part. Regarding administrative torts the Conseil d' Etat evolved
two principles18. Faute de Service and Faute Personnelle. If the agent of the administration was
at fault in carrying out administrative responsibilities then a person injured in consequence could

16
Dalehite v. U.S., 346 U.S. 15 (1953), forms the best illustration in which a claim made against the United States,
for damages resulting from an explosion of ammonium nitrate while being loaded for export, failed. The Court held
that the United State was not liable because the act in question involved the exercise of discretion which fell within
the exceptions of the Federal Tort Claims Act,
17
L. Nevil Brown and J. F. Garner, French Administrative Law (1973), p. 97.
18
Id., p. 100.
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sue the State in the Conseil d' Etat for Faute de Service. If the tortious act was done due to the
personal fault of the individual officer then the liability could be imposed on him personally in
the civil courts for Faute Personelle. A combination of service fault and personal fault is
recognized as what is called Cumul19. In such cases the victim can sue the official both in civil
courts and in administrative courts. This does not mean that the victim can obtain damages twice.
Instead the damages are contributed by the joint tort feasors. The judgment debtor who pays
damages has the right of action against the other for contribution. In France the administration
can be made liable even if there is no fault on its part. This liability without fault is based on the
risk theory20. According to this theory the administration has a duty to compensate anyone
injured as a result of the carrying out of public works involving risk. Thus France has the most
advanced system of case law on governmental liability.

19
Id., p. 101.
20
Id., p. 104.
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CONCLUSION
In India Government is not liable in tort for acts done in the exercise of sovereign functions. It is
liable for the torts committed by its servants in the discharge of non-sovereign functions.
Functions carried out by Government, which can be carried out by private individuals without
any delegation of sovereign powers of the Government are non-sovereign functions. Before
independence when India was a Police State, the judicial attitude was to give a very wide
interpretation to the term 'sovereign function' by including matters incidental to sovereign
function.

Accordingly, defense and police functions, and matters incidental thereto, were included in the
category of sovereign functions. After independence we have adopted a Constitution committed
to Welfarism. Judicial attitude has changed in time with the ideals of the Welfare State. Courts
began to curtail sovereign immunity through a restrictive interpretation. Civilian functions of the
military, acts of Public Works Department and maintenance of hospitals were thus excluded
from the category of sovereign functions. By such interpretation courts attempted to impose
tortious liability on Government in suitable cases.

The test of sovereign functions and non-sovereign functions cannot be treated as an appropriate
one to decide the liability of Government since it lacks objectivity. If a judge is biased in favors
of Government, he can hold the activity in question as a sovereign function and exclude liability.
If he wants to help the aggrieved he can characterize the function as non-sovereign. This is not a
satisfactory position. A balanced approach is needed.

Uncertainty in law will lead to abuse of judicial process. Justice Holms has said that uncertain
justice is better than certain injustice. But can it be said that uncertain law will always do justice?
Excessive dependence on precedents will not solve the problems. If courts in India are still
allowed to base their decision on the old rule laid down by the British Judge in 1861 in P & 0
case and other outmoded principles following the case, this important branch of law will be lost
in 'that codeless myriad of precedents' or in 'that wilderness of single instances'. This situation
should not be allowed to continue. Legislation in this branch of law is a crying necessity. The
Law Commission of India had suggested that the old distinction between sovereign and non-
sovereign functions, or Governmental and non-Governmental functions, should no longer be
 Page 20 of 21

invoked to determine the liability of the State21. The Commission made many recommendations
on the basis of which legislation should proceed22." Accordingly Bills were introduced in
Parliament more than once. But till now no law has been passed. A perusal of the Law
Commission Report on Tortious Liability of Government and the Bills that followed it shows a
long list of exceptions for which the Government should not be made Liable.

These exceptions include act of State, act done by the President or Governor of the State in the
discharge of legislative duties, acts done by the Government for training or maintaining the
armed forces, police functions, judicial acts, execution of judicial process, foreign torts and acts
done under certain statutes. If the law is enacted with this long list of exceptions it will
substantially weaken the Governmental liability sought to be achieved. It may be true that for the
effective governance, Governmental immunity should not be ruled out completely. But this
should be to the minimum degree. Essential sovereign functions should be protected. But matters
incidental to them should not be protected.

For instance while defence functions of Government should enjoy immunity civilian functions
of the military should not. The defence of act of State should not be allowed to be raised as it is
appropriate to the domain of international relations and not to relations between the State and its'
citizen. If the French theories of fault, risk and contribution are adopted in India the ends of
justice will be more effectively met. Legislation should be modeled on the lines of the French
Law of Governmental liability. Personal liability of the officials and the compulsion to contribute
their share to the damages will make the Government officers more responsible.

21
Law Commission of India, First Report (Liability of the State in Tort) (1956), p. 32.
22
Ibid.
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BIBLIOGRAPHY:
i. ADMINISTRATIVE LAW- BY, DR.I.P MASSEY.
ii. AN INTRODUCTION TO ADMINISTRATIVE LAW- BY, K.C JOSHI.
iii. THE PRINICIPLES OF ADMINISTRATIVE LAW GOVERNING THE RELATIONS
OF PUBLIC OFFICERS-BY, BRUCE WYMAN.
iv. ADMINISTRATIVE LAW-BY, WILLIAM WADE.