03-RnD Chapter 3 - p-33-72

PERSONAL CAPACITY 33
CHAPTER III
CHAPTER III
PERSONAL CAPACITY
LAW OF TORTS
PERSONAL CAPACITY
SYNOPSIS
1. Convicts and Persons in Custody......... (B) Indian Law.....................................
33 65
2. Alien Enemy......................................... (i) Historical Background...........
35 65
3. Husband and Wife................................ (ii) Sovereign Immunity...............
35 74
4. Corporation........................................... (iii) Public Law Wrongs................
36 77
4A. Highway Authority............................... (iv) Limitations of Sovereign
40 Immunity................................
5. Unincorporated Associations............... 88
44 9. Foreign Sovereigns...............................
6. Trade Unions........................................ 92
47 10. Ambassadors.........................................
7. Insolvent............................................... 94
50 11. Minor....................................................
8. The State and its Officers..................... 95
54 12. Lunatic..................................................
(A) English Law................................... 98
54
All persons have the capacity to sue and be sued in tort. This, however, is a general
rule and is subject to modification in respect of certain categories of persons.
1. CONVICTS AND PERSONS IN CUSTODY
UNDER the Forfeiture Act, 1870,1 a convict whose sentence was in force and
unexpired, and who was not “lawfully at large under any license” could not sue for
an injury to his property, or for recovery of a debt. This disability has been removed
by the Criminal Justice Act, 1948.2 Under the English law, a convicted person, in
spite of his imprisonment, retains all civil rights which are not taken away expressly
or by necessary implication.3 The conviction and sentence by a court and rules of
prison discipline curtail the liberty of a convict, but, subject to that curtailment, the
courts remain the ultimate custodians of his rights and liberties in the same manner as
they are in respect of other citizens. 4 A convict can, therefore, under English law sue
for wrongs to his person and property like any other citizen. The Indian law is the
same. “Convicts are not, by mere reason of the conviction, denuded of all the
fundamental rights which they otherwise possess. A compulsion under the authority
of law, following upon conviction, to live in a prison house entails by its force the
1
. 33 & 34 Vic., c. 23, ss. 8, 30 (Now repealed).
2
. 11 & 12 Geo., VI, c. 58, Sch. 10, Part I (Now repealed).
3
. Raymond v. Honey, (1982) 1 All ER 756, p. 759 : 1983 AC 1(HL).
4
. R. v. Hull Prison Board of Visitors, ex parte St. German, (1979) 1 All ER 701 (CA),
p. 716; Leach v. Parkhurst Prison Deputy Governor, (1988) 1 All ER 485 (HL), p. 501; Regina v.
Deputy Governor of Parkhurst Prison, (1991) 3 WLR 340 (HL).
34 LAW OF TORTS CHAPTER III
deprivation of fundamental freedoms like the rights to move freely throughout the
territory of India or the right to practise a profession. A man of profession would thus
be stripped of his right to hold consultations while serving out his sentence. But the
Constitution guarantees other freedoms like the right to acquire, hold and dispose of
property for the exercise of which incarceration can be no impediment. Likewise, a
prisoner or even a convict is entitled to the precious right guaranteed by Article 21 of
the Constitution that he shall not be deprived of his life or personal liberty except
according to procedure established by law.”5 Conviction of a person, thus, does not
draw any ironcurtain between him and his rights and he is not reduced to a non
person.6 A convict can, therefore, sue in tort for vindication of his right which is
invaded by a tortious act committed by another. He can thus sue for battery or assault
if prison authorities apply excessive force to enforce prison discipline or apply force
for an improper purpose. 7 A convict was attacked by another convict in Jail and
killed due to failure of Jail authorities to protect him. In a petition under Article 32 of
the Constitution by the dependants of the deceased they were awarded Rs. 1,00,000
as compensation against the State for violation of the fundamental right of life
protected under Article 21.8
The State has a higher responsibility in respect of persons in its custody to ensure
that they are not deprived of their right to life. 9 The same principle is applied to a
patient detained in a Mental Health Hospital. Where there was a real and immediate
risk of a detained patient committing suicide, there was an operational obligation on
the authorities to do all that could be expected to prevent it. When a patient
absconded because of negligence of the authorities and committed suicide, the public
authority responsible for the hospital was held liable in damages to the daughter of
the patient for deprivation of right to life under the Human Rights Act, 1998 (U.K.). 10
Among the rights which, in part atleast survive to a prisoner are “three important
rights closely related but freestanding, each of them calling for appropriate legal
protection: the right of access to a court, the right of access to legal advice, and the
right to communicate confidentially with a legal advisor under the seal of legal
professional privilege. Such rights may be curtailed only by clear and express words,
and then only to the extent reasonably necessary to meet the end which justify the
curtailments”.11 Further, a convicted person is not deprived of his fundamental right of
freedom of speech and, subject to rules relating to prison discipline, he cannot merely
communicate with his friends and relations but also with a journalist with a request to
further investigate the case for proving his innocence and for showing that his
conviction has resulted in miscarriage of justice.12
5
. D.B.Y. Patnaik v. A.P., AIR 1974 SC 2092, p. 2094 : (1975) 3 SCC 185 : 1975 Cri LJ 556; see
further, D.K. Basu v. State of West Bengal, AIR 1997 SC 610, pp. 618, 619 : (1997) 1 SCC 416;
State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 6 JT 334, pp. 345 to 347 : AIR 2000
SC 2083, pp. 2088 to 2092 : (2000) 5 SCC 712.
6
. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, p. 1727 : (1978) 4 SCC 494. For
directions of the Supreme Court for jail reforms, see, Rama Murthy v. State of Karnataka, AIR 1997
SC 1739 : (1997) 2 SCC 642. For direction for payment of equitable wages to prisoners from whom
work is taken, see, State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC 3164.
7
. R. v. Deputy Governor of Parkhurst Prison, (1990) 3 All ER 687 (CA), p. 709.
8
. Smt. Kewal Pati v. State of U.P., (1995) 3 SCC 600 : (1995) 2 SCALE 729 : 1995 ACJ 859.
9
. See text and footnote 42, p. 53.
10
. Savage v. South Essex Partnership NHS Foundation Trust, (2009) 1 All ER 1053 (H.L.); see
also, Rabone and Another v. Pennine Care NHS Foundation Trust [2012] UKSC 2..
11
. R. v. Secretary of State for the Home Department, exparte Daly, (2001) 3 All ER 433, p. 437 :
(2001) UK HL 26 : (2001) 2 AC 532 : (2001) 2 WLR 1622 : (2001) 3 All ER 433 (H.L.).
12
. R. v. Secretary of State for the Home Department, (1999) 3 All ER 400 (HL).
A member of Parliament as an undertrial prisoner is not above the law and is

subject to jail discipline.13 But if he won the election contesting from jail he can be
allowed to take oath as M.P. but he has to be brought back to jail after taking oath.14
But a prisoner has no ‘residual liberty’ to sue for false imprisonment for breach of
prison rules e.g., when he is segregated in breach of these rules but he can challenge
the segregation by a public law remedy e.g., a writ petition; and if conditions of
detention are so intolerable that his health suffers he may also have a private law
remedy of suing in negligence. 15 Similarly, detention of a prisoner during the period
he would have been at liberty if his case had been considered “speedily” as mandated
under Section 5(4) of Human Rights Act, 1998 does not amount to false
imprisonment or illegal detention. 16 However, award of damages as compensation
can be made for the frustration and anxiety which the prisoner may have suffered on
account of the delay.17
2. ALIEN ENEMY
By an alien enemy is meant a person of enemy nationality or a person residing in or
carrying on business in enemy territory, whatever his nationality. 1 Even a British
subject or a neutral residing voluntarily or carrying on business in enemy territory is
in the same position as a subject of hostile nationality and he will be treated as an
enemy alien.2 An enemy alien cannot sue in his own right. 3 He cannot maintain an
action unless by virtue of an Order in Council, or unless he comes into the British
Dominions under a flag of truce, a cartel, a pass, or some other act of public authority
putting him in the King’s peace.4 An alien enemy residing within the realm by the
express or tacit licence of the Crown is temporarily free from his enemy character
and can invoke jurisdiction of courts. 5 Similar principles, it would seem, apply in
India. Alien enemies residing in India with the permission of the Central
Government, and alien friends, may sue in any court otherwise competent to try the
suit, as if they were citizens of India, but alien enemies residing in India without such
permission, or residing in a foreign country, shall not sue in any such court. 6
Every person residing in a foreign country, the Government of which is at war with
India and carrying on business in that country without a licence on that behalf
granted by the Central Government is deemed to be an alien enemy residing in a
foreign country.7
3. HUSBAND AND WIFE
13
. Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284 : AIR 2005 SC
972 : (2005) 3 SCC 307 : AIR 2005 SC 4041.
14
. Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 311.
15
. Hague v. Deputy Governor of Parkhurst Prison, (1991) 3 All ER 733 (HL) : (1991) 3 WLR 340
(HL).
16
. R (James) v. Secretary of State for Justice [2010] 1 AC 553.
17
. R (on the application of Faulkner) and Another v. Secretary of State for Justice and another
[2013] UKSC 23..
1
. Scotland v. South African Territories (Limited), (1917) 33 TLR 255.
2
. Porter v. Freudenberg, (1915) 1 KB 857, p. 869; Sovracht (VO) v. Van Udens Scheepvarten
Agentuur Maatschappij (N.V. Gabr.), (1943) AC 203 (HL).
3
. De Wahl v. Braune, (1856) 1 H & N 178.
4
. The Hoop, (1799) 1 Rob 196, 201.
5
. Johnstone v. Pedlar, (1921) 2 AC 262 : 37 TLR 870 : 90 LJPC 181 : 125 : LT 809.
6
. Civil Procedure Code, Act V of 1908, s. 83.
7
. Explanation to s. 83 Civil Procedure Code. But, see, Manaseeh Film Co. v. Gemini Picture
Circuit, AIR 1944 Mad 239.
The common law relating to married women suffered from serious anomalies. A
married woman could not sue for any tort committed by a third person unless her
husband joined with her as plaintiff. She could also not be sued for a tort committed
by her unless her husband was made a defendant. Further, she could not sue her
husband and the husband could not sue her for any tort committed by one against the
other. These anomalies have been by and large removed by legislation. By the
Married Women’s Property Act, 1882 1 and the Law Reform (Married Women and
Tortfeasors) Act, 1935,2 a married woman can sue for any tort committed by a third
person and can also be sued for any tort committed by her without joining her
husband who cannot be made liable or made party to a suit simply because he is the
husband. Finally, by the Law Reform (Husband and Wife) Act, 1962, 3 each of the
parties to a marriage has the same right of action in tort against the other as if they
were not married but the court has a discretion to stay the proceedings to prevent
them from using it as a forum for trivial domestic disputes without any chance of
substantial benefit to either of them. The aforesaid anomalies removed by legislation
resulted from the doctrine of the common law that marital status made the husband
and wife one person in the eye of law, a doctrine which was used to reduce the wife
to a subordinate position. Marital status of Hindus, Buddhists, Sikhs, Jains and
Muslims in India is governed by their personal laws and not by the common law.
Neither does marriage under these personal laws affect the capacity of the parties for
suing or for being sued, nor does it confer any protection to any of the spouses for
any tortious act committed by one against the other. As regards other persons, e.g.,
Christians who in respect of the marital status may have been subject to the common
law, the anomaly to some extent was removed by the Married Women’s Property
Act, 1874, under which a married woman to whom the Act applies can sue or be sued
alone. Even if there was ever any anomaly in the Indian law similar in any manner to
those in the common law, it could not survive the impact of the Constitution which,
under Article 14, embodies a guarantee against arbitrariness and unreasonableness. 4
The legal position, therefore, appears to be that marriage has no effect on the rights
and liabilities of either of the spouses in respect of any tort committed by either of
them or by a third party. The wife can sue the husband for any tort committed by him
against her and the husband can sue the wife for any tort committed by her against
him.5 The wife against whom a tort has been committed by another person can sue
him without joining the husband and similarly the husband can sue for any tort
committed against him without joining the wife. Each of the spouses can similarly be
sued in tort by a third party without joining the other as a party. Further, a conspiracy
between husband and wife is capable of giving rise to tortious liability.6
4. CORPORATION
A Corporation is a legal person. It may, like the State Bank of India, a University
or a Metropolitan Council, be created by an Act of the legislature; or it may, like a
company be created under an Act of the legislature. The common features of
Corporations are a name, perpetuity of existence and capacity to sue and be sued.
1
. 45 & 46 Vic., c. 75, s. 1 (Now repealed).
2
. 25 & 26 Geo. V., c. 30, s. 1.
3
. 10 & 11 Eliz. 2, c. 48.
4
. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, pp. 498, 499 : (1981) 1 SCC 722.
5
. See, Church v. Church, (1983) 133 NLJ 317, where damages were allowed in an action for
battery between spouses; cited in WINFIELD and JOLOWICZ, Tort, 12th edition, p. 690, footnote 39.
6
. Midland Bank Trust Co. Ltd. v. Green (No. 3), 1979 Ch. 496 : 1982 Ch 529 (CA).
Suits by Corporations.—A Corporation cannot obviously bring a suit for torts

which are only wrongs against living persons, e.g., assault and false imprisonment. It
cannot also sue for a tort committed essentially against its shareholders or employees
unless the tort has also some impact on the governance or business or property of the
Corporations.1 This is for the reason that a Corporation’s personality is different and
distinct from the individuals constituting it and the employees acting for it. Subject to
these general reservations, a Corporation can sue for torts committed against itself. A
Corporation can thus sue for malicious presentation of a windingup petition 2 or a
libel charging it with insolvency or with dishonest or incompetent management. 3 It
was once held that a Corporation cannot maintain an action for libel charging it with
corruption for it is only individuals and not the Corporation who can be guilty of
such an offence.4 However, certain authorities show that this view is erroneous and
that a trading corporation is entitled to sue in respect of defamatory matters which
can be seen as having a tendency to damage it in the way of its business.5
A limited liability company, no less than an individual, can maintain an action for
slander without proof of special damage, where the words are calculated to injure its
reputation in relation to its trade or business.6
Suits against Corporations.—The existence and extent of the liability of a
corporation in actions of tort were at one time a matter of doubt, due partly to
technical difficulties of procedure and partly to the theoretical difficulty of imputing
wrongful acts or intentions to fictitious persons.7
A corporation is undoubtedly liable for torts committed by its agents or servants to
the same extent as a principal is liable for the torts of his agent or a master for the
torts of his servant, when the tort is committed in the course of doing an act which is
within the scope of the powers of the corporation. It may thus be liable for assault,
false imprisonment, trespass, conversion, libel or negligence. 8 It was thought at one
time that a corporation could not be held liable for wrongs involving malice or fraud
on the ground that to support an action for such a wrong it must be shown that the
wrongdoer was actuated by a motive in his mind and that “a corporation has no
mind”.9 But the alter ego doctrine developed later has solved the difficulty. In the
words of VISCOUNT HALDONE LC: “A corporation is an abstraction. It has no mind
of its own any more than it has a body of its own; its active and directing will must
consequently be sought in the person of somebody who for some purposes may be
called an agent, but who is really the directing mind and will of the corporation, the
very ego and centre of the personality of the corporation”. 10 The doctrine stated
1
. Bognor Regis. UDC v. Campion, (1972) 2 QB 169 : (1972) 2 WLR 983.
2
. Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674.
3
. Metropolitan Saloon Omnibus Co. v. Hawkins, (1889) 4 Hd No. 87 : 28 LJ Ex 201.
4
. Mayor etc. of Manchester v. Williams, (1891) 1 QB 94.
5
. Derbyshire County Council v. Times News Papers Ltd., (1993) 1 All ER 1011, p. 1017 : 1993
AC 534 (HL). See further, D. & L. Caterers Ltd. v. D’Ajou, (1945) 1 KB 364; National Union of
General and Municipal Workers v. Gillan, (1946) KB 81 : (1945) 2 All ER 543; Willis v. Brooks,
(1947) 1 All ER 191 : 62 TLR 745; South Heton Coal Co. Ltd. v. N.E. News Association Ltd.,
(1894) 1 QB 133.
6
. D. & L. Caterers. Ld. v. D’Ajou, (1945) 1 KB 364 : 114 LJKB 386 (CA).
7
. PER LORD BRAMWELL in Abrath v. North Eastern Railway Co., (1883) 11 App. Cas 247 : 55 LT
63.
8
. Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93; Criminal Justice Society v. Union of
India & Others, AIR 2010 Del 194. In a Public Interest Litigation, the Delhi High Court awarded
compensation to a widow, whose husband succumbed to injuries as a result of falling in a pit on the
road which was meant to be covered by the Municipal Corporation. On account of negligence, the
Municipal Corporation was held liable for the acts of its agents.
9
. Stevens v. Midland Counties Ry. Co., (1854) 10 Ex. 352.
10
. Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., (1915) AC 705, p. 713 : 113 LT 195
(HL).
above attributes to the corporation the mind and will of the natural person or persons
who have management and control of the actions of the corporation in relation to the
act or omission in point. 11 By applying this doctrine of attribution as further
explained by the Privy Council,12 a company may be held liable for the fault of an
employee acting in the course of employment even though the employee acted
contrary to the orders of the company13 or with a corrupt purpose.14 It is now settled
that a corporation is liable for wrongs even of malice and fraud. A corporation,
therefore, may be sued for malicious prosecution or for deceit.15
It is also settled that an action for a wrong lies against a corporation where
the thing done is within the purpose of the incorporation, and it has been done in such
a manner as to constitute what would be an actionable wrong if done by a private
individual.16
A corporation which is created by a statute is subject only to the liabilities which
the legislature intended to impose upon it. The liability must be determined upon a
true interpretation of the statute under which it is created. 17 A corporation is liable
even if it is incorporated for public duties from the discharge of which it derives no
11
. EL A Jou v. Dollar Land Holdings plc., (1994) 3 All ER 685 (CA), pp. 695, 696 : (1994) 1 BCLC
464.
12
. Meridian Global Funds Management Asia Ltd. v. Securities Commission, (1995) 3 All ER 918
(PC), pp. 922 to 926 : (1995) 2 AC 500 : (1995) 3 WLR 413 (PC); Jetivia SA and Another v. Bilta
Ltd. (In Liquidation) and others [2015] UKSC 23 see further G.P. SINGH, Principles of Statutory
Interpretation, 10th edition, pp. 864 to 871.
13
. Re Supply of Ready Mixed Concrete (No. 2), (1995) 1 All ER 135 (HL).
14
. Meridian Global Funds Management Asia Ltd. v. Securities Commission, supra, p. 926.
15
. Barwick v. English Joint Stock Bank, (1867) LR 2 Ex. 259; Citizen Life Assurance Co. v.
Brown, (1904) AC 423; Ahmedabad Municipality v. Panubhai, (1934) 37 Bom LR 468; M.P. Trust
v. Safiulla and Co., AIR 1965 Mad 133.
16
.A corporation is held liable for libel (Whitfield v. South Eastern Railway Company, (1858) El
Bl & El 115; Nevill v. Fine Arts & General Ins. Co., (1895) 2 QB 156; Citizens’ Life Assurance
Co. v. Brown, (1904) AC 423) : 20 TLR 497; for acts of misfeasance by its servants (Green v.
London General Omnibus Co., (1859) 7 CBNS 290); for fraudulently trading in the name of
another (Lawson v. The Bank of London, (1856) 18 CB 84); for false imprisonment, Goff v.
Great Northern Railway Company, (1861) 3 E & E 672; Lambert v. Great Eastern Railway,
(1909) 2 KB 776); for malicious prosecution (Edwards v. Midland Railway Co., (1880) 6 QBD
287; Cornford v. Carlton Bank Limited, (1899) 1 QB 392, (1900) 1 QB 22; Rayson v. South
London Tramways Company, (1893) 2 QB 304 : 69 L.T. 491; Mg. Kyaw Nyun v. Maubin
Municipality, (1925) 4 Burma LJ 139; Chhaganlal v. Thana Municipality, (1931) 34 Bom LR
143, 56 Bom 135; contra, Stevens v. Midland Counties Railway Co., (1854) 10 Ex. 352;
Henderson v. The Midland Railway Company, (1871) 24 LT 881; Abrath v. North Eastern
Railway Co., (1886) 11 App Cas 247; C.S. Cooperative Credit Society Ltd. v. Becharam, (1938)
42 CWN 1219; for fraud (Mackay v. Commercial Bank of New Brunswick, (1874) LR 5 PC 394;
Houldsworth v. City of Glasgow Bank, (1880) 5 App Cas 317; for distress (Smith v. The
Birmingham Gas Company, (1834) 1 A & E 526); for trespass (Maund v. The Monmouthshire
Canal Company, (1842) 4 M & G 452); for assault (Eastern, Counties Railway Co. v. Broom,
(1851) 6 Ex. 314; Butler v. Manchester, Sheffield, and Lincolnshire Railway Co., (1888) 21 QBD
207); for conversion (Yarborough v. The Bank of England, (1812) 16 East 6); for nuisance
(Borough of Bathurst v. Macpherson, (1879) 4 App Cas 256); for negligence (Gilbert v.
Corporation of Trinity House, (1886) 17 QBD 795; The Rhosing (1885) 10 PD 131; Dormont v.
Furnes Railway Co., (1883) 11 QBD 496; Scott v. Mayor of Manchester, (1856) 1 H & N 59;
Cowley v. Mayor, etc. of Sunderland, (1861) 6 H & N 565; Mersey Docks Trustees v. Gibbs,
(1866) LR 1 HL 93; McCelland v. Manchester Corporation, (1912) 1 KB 118).
A trade union registered under the Trade Union Acts, 1871 and 1876 (34 & 35 Vic., c. 31 and 39
& 40 Vic., c. 20) may be sued in its corporate name : Taff Vale Ry. v. Amalgamated Society of
Railway Servants, (1901) AC 426. But this decision has been overruled by s. 4 of the Trade
Disputes Act, (1906), (6 Edw. VII, c. 47), which says that no Court is to entertain any action for tort
brought against a trade union or against any members on behalf of themselves and all other
members of the union.
17
. Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93, 104.
profit.18 A government authority or corporation created by a statute is liable like

any private body unless otherwise provided by statute. 19 It has thus been held that
a Development Authority is liable to a consumer under the Consumer Protection
Act 1986.20
There is a difference of opinion on the question whether a corporation is liable for
a tortious act of its servants which is ultra vires the Corporation. One view is that the
corporation is not liable21 the reasoning being that the corporation could not have
empowered the servant to do an act which the corporation itself has no power to do.
This view was taken at a time when the basis of vicarious liability was thought to be
an “implied authority” of the master for doing the tortious act. It is now accepted
that the real test for determining the master’s vicarious liability is not the existence of
any implied authority but the commission of the tort by the servant “in the course of
employment”. The prevailing view, therefore, is that a corporation is vicariously
liable for a tortious act of its servants even though it is ultra vires provided it is done
in the course of employment. 22 Apart from vicarious liability, a corporation will be
directly liable for a tortious act, even if it is ultra vires its powers, if it is authorised
or ratified by those who constitute the “directing mind and will of the corporation.” 23
In Campbell v. Paddington Corporation,24 a stand was erected in a highway in
pursuance of a resolution passed by the borough council which constituted a public
nuisance and which the corporation had no power to erect. In a suit by a person who
suffered special damage the corporation was held liable as the act was authorised by
its council: “To say that, because the borough council had no legal right to erect it,
therefore, the corporation cannot be sued, is to say that no corporation can ever be
sued for any tort or wrong. The only way in which this corporation can act is by its
council, and the resolution of the council is the authentic act of the corporation. If the
view of the defendants were correct no company could ever be sued if the Directors
of the Company after resolution did an act which the Company by its Memorandum
of Association had no power to do.” 25 The view taken in this case has met the
approval of the leading textbooks.26
In India, it has been laid down that: “Whatever difference of opinion there may be
on the question of the abstract legal doctrine as to how far an agent or servant of a
corporation can be said to act within the scope of his employment in respect of a tort
which is ultra vires the corporation, it seems to be clear that there is consensus of
18
. Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93, 104; The Bearn, (1906), p. 48.
19
. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 : (1994) 1 SCC 243 :
(1994) 80 Com Cases 714.
20
. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 : (1994) 1 SCC 243 :
(1994) 80 Com Cases 714; Ghaziabad Development Authority v. Balbir Singh, AIR 2004 SC 2141 :
(2004) 5 SCC 65 : (2004) 121 Com Cases 409.
21
. The leading case on the subject is Poulton v. London and S.W. Ry. Co., (1867) LR 2 QB 534. In
that case a stationmaster in the employ of the defendant company arrested the plaintiff for refusing
to pay the freight for a horse that had been carried on the defendant’s railway. The railway company
had authority under the Act of Parliament to arrest a person who did not pay his fare but none to
arrest a person for nonpayment for the carriage of goods. It was held that the railway company was
not liable. The company having no power itself to arrest for such nonpayment, it could not give the
stationmaster any power to do the act. The plaintiff’s remedy for the illegal arrest in such a case
would be against the stationmaster only.
22
. WINFIELD and JOLOWICZ, Tort, 12th edition, p. 692, S ALMOND and HEUSTON, Torts, 20th
edition, p. 442; C LERK and LINDSELL, Torts, 15th edition, p. 136. But the Corporation may not be
liable if the appointment of the servant is itself ultra vires.
23
. Lennard’s Carrying Co. v. Asiatic Petroleum Co., (1915) AC 705, p. 713 : 113 LT 195 (HL).
In this case a corporation was held guilty of “actual fault” within the meaning of the Merchant
Shipping Acts. See further, p. 35, supra.
24
. (1911) 1 KB 869 : 104 LT 394.
25
. (1911) 1 KB 869, p. 875.
26
. CLERK & LINDSELL, Torts, 15th edition, p. 137; WINFIELD & JOLOWICZ, Tort, 12th edition, p.
693; SALMOND & HEUSTON, Torts, 20th edition, p. 422.
authority for holding that a corporation cannot be immune from liability in respect
of torts brought about at its instance on the ground that the act was not intra vires
the corporation”.27
Foreign corporations.—A foreign corporation (i.e., a corporation created by the
law of any foreign country) may sue and be sued for a tort, like any other
corporation.28 A multinational corporation having subsidiaries in different countries
and owning controlling shares in the subsidiaries may be held liable for a tort
committed by a subsidiary company by piercing the veil of incorporation on the
reason that the parent company constitutes the directing mind and will of the
subsidiary company. It is on this basis that Union Carbide Corporation (UCC), a
multinational registered in USA, was held liable by S ETH, J., of the Madhya Pradesh
High Court for the Bhopal gas disaster which resulted from leakage of poisonous
gas from a plant owned by Union Carbide India Ltd. (UCIL), which is a subsidiary
of UCC.29
Idols.—The liability of the estate of an idol for wrongs committed by its shebait
(the person in charge of the idol) is analogous to the liability of a corporation.30
4A. HIGHWAY AUTHORITY
Under the common law public bodies charged with the duty of keeping public
roads and bridges in repair and liable to an indictment for breach of this duty, were
nevertheless not liable to an action for damages at the suit of a person who had
suffered injury from their failure to keep the roads and bridges in proper repair. This
anomalous rule of the common law which “resulted in injustice to many people” 1 has
been abrogated in the United Kingdom by the Highways (Miscellaneous Provisions)
Act, 1961. The law is now to be found in the Highways Act, 1980, section 41 of
which lays down a statutory obligation on the highway authority to maintain the
highway.2 As a result of this Act, an action lies against a highway authority for
damage due to nonrepair; the authority, however, can plead as defence that it had
taken such care as in all the circumstances was reasonably required to secure that the
part of the highway in question was not dangerous for traffic; the Act also
enumerates certain matters which the court has to take into account for the purpose of
this defence. The common law duty to repair was absolute and so is the statutory
duty but subject to the availability of the defence allowed by the Act. 3 The duty is to
27
. Tiruveriamuthu Pillai v. Municipal Council, AIR 1961 Mad 230 : (1961) Mad 514 : 1961
Kerala LT 153 : 74 MLW 104: The plaintiff’s dog was killed by the employee of a Municipal
Council in the course of the discharge of his function of killing stray dogs in the Municipal town
expressly authorised by the Council. In an action by the plaintiff for damages against the Council
for the loss of the dog, held, that the Council was liable for the unlawful act of having brought about
the destruction of the plaintiff’s dog and the fact that the Council acted in excess of its statutory
powers was not a defence to the action but was only an aggravating circumstance.
28
. Henriques v. Dutch West India Company, (1728) 2 Ld. Raym 1532; Newby v. Colts Patent
Firearms Co., (1872) LR 7 QB 293.
29
.Union Carbide Corporation v. Union of India, 1988 MPLJ 540. See, PROF. D.V.N. REDDY,
Industrial Disasters Responsibility of Transnational Corporations and the Home and Host States,
(1992) Vol. 5, Central Indian Law Quarterly 170, pp. 171 to 175. PROF. REDDY states at p. 173:
“The present trend in developed states especially in the USA, is to hold the parent company liable to
make reparations for the environmental damage caused by their under capitalized subsidiaries
engaged in ultrahazardous industrial activities” and cites Taylor v. Standard Gas and Electronic
Company, 306 USA (1939), p. 309 in support.
30
. Raja Pramada Nath Roy v. Shebait Purna Chandra Roy, (1908) 7 CLJ 514.
1
. PER LORD MOLSON introducing the Bill to amend the common law rule. See, S ALMOND &
HEUSTON, Torts, 18th edition, p. 86.
2
. The Act as expressed in section 58 (3) binds the crown.
3
. Goodes v. East Sussex County Council, (2000) 3 All ER 603, pp. 608610 : (2000) 1 WLR
1356 : 2000 RTR 366 (HL).
put the road in such good repair as renders it reasonably passable for the ordinary
traffic at all seasons of the year without danger caused by its physical condition; but
the duty does not extend to remove or prevent the formation of snow or ice on the
highway.Error: Reference source not found The duty to maintain the highway under
section 4 does not require the Highway Authority to place on or near the highway
sufficient signs giving warning to motorists that they were approaching a dangerous
part of the road.4 The statutory duty does not also extend to carrying out work on
land not forming part of the highway and the highway authority may also not be held
to be in breach of its common law duty of care in failing to cause an obstruction to be
removed which restricted visibility and which contributed to an accident resulting in
personal injury.5 The Act has been construed to confer a right of action only to users
of the highway who could prove that they had suffered physical injury to person or
property while using the highway when it was in a dangerous condition due to want
of repair or maintenance, and it has been held that the Act confers no right of action
for purely economic loss resulting from the highway being in dangerous condition.6
The rule of the common law as existed before the Act was not based on any
principle of justice, equity and good conscience and should not have been applied in
India; but, it was followed in some cases. 7 Its abrogation in the country of its origin
on the ground that it was anomalous and unjust now leaves hardly any justification
for its further application in India.8 Other common law countries have also departed
from the common law rule and are inclined to apply the general principle of
negligence to a highway authority.9
Under the Indian law, the duty to repair and maintain a highway laid on a local
authority or a Government is governed by statutory enactments and the question
whether in a particular case a suit lies for damage due to nonrepair would depend
upon the construction of the relevant statutory provision and not on any principle of
the common law and prima facie there is no reason to deny liability unless it is
expressly or by necessary implication negatived by the statute. 10 If in a given case the
relevant Indian statute is silent on any matter and it is necessary to look beyond its
provisions for guidance, rules of English law as now contained in the Highways Act,
1980 and not the rules of the common law may be taken notice of and applied for the
Act is consistent with the principles of justice, equity and good conscience. In one of
the cases, Highways department of the State of Tamil Nadu was held liable by the
Supreme Court for negligence when a public transport vehicle plunged into a river on
collapse of culvert on the highway.11
4
. Gorringe v. Calderdale Metropolitan Borough Council, (2004) 2 All ER 326 (HL).
5
. Stovin v. Wise, (1996) 3 All ER 801 : 1996 AC 923 : (1996) 3 WLR 388 (HL).
6
. Wentworth v. Wiltshire Country Council, (1993) 2 All ER 256 : 1993 QB 654 : (1993) 2 WLR 175
(CA).
7
. Achratlal v. Ahmedabad Municipality, (1904) 6 Bom LR 75 : ILR 28 Bom 340; Mohanlal v.
Ahmedabad Municipality, (1937) 40 Bom LR 552 : ILR (1938) Bom. 696; District Board, Badaun v.
Sri Niwas, (1942) ALJR 619; Rahim Bakhsh v. Municipal Board, Bulandshahr, (1939) ALJR 101 :
AIR 1939 All 213.
8
. See, Chapter 1, title 1, pp. 2, 3 and 4.
9
. Brodie v. Singleton Shire Council, (2001) 75 ALJR 992, pp. 1006, 1007, 10211026
(Australia).
10
. Subramanyam v. District Board, AIR 1941 Mad 733; District Board, Manbhum v.
Shyamapada, AIR 1955 Pat 432.
11
. S. Vedantacharya v. Highway Department of South Arcot, (1987) 3 SCC 400 : 1987 SCC (Cri)
559. For a case where proper arrangement was not made for lighting a street and the Cantonment
Board was held liable, see, Dr. C.B. Singh v. The Cantonment Board, Agra, 1974 ACJ 248 (All);
See also, Marakkar & Another v. State of Kerala, AIR 2010 (NOC) 562 (Ker), wherein death
occurred due to injuries suffered on account of pot holes in the road maintained by Public Works
Department. PWD held liable for compensation; Smt. Selvi v. State of Tamil Nadu & Others, AIR
2010 (NOC) 255 (MAD), wherein a child died by falling into sewage line as a manhole was left
open. Metro water supply and sewage board was held responsible and liable for payment of
It has also been held by the House of Lords that the existence of the broad public
law duty in section 39 of the Road Traffic Act that ‘each local authority must prepare
and carry out a programme of measures designed to promote road safety’ did not
generate a common law duty of care and a private law action for damages.12
5. UNINCORPORATED ASSOCIATIONS
Unincorporated Associations have no corporate existence and are not legal
persons. They cannot, speaking generally, sue or be sued in their names. Any
member or officer of such an association has to be sued personally for tort committed
by him or authorised by him. 1 The provisions of Order I, Rule 8 of the Code of Civil
Procedure, 1908, may be availed of if all the members or a number of them have to
be sued. A partnership firm though not a legal entity can sue or be sued in the firm
name under Order XXX of the Code of Civil Procedure. An association which is
registered as a society under the Societies Registration Act, 1860 can, as provided in
section 6 of the said Act, sue or be sued in the name of its President, Chairman or
Principal Secretary, etc., as may be determined by its rules or regulations or by a
resolution of the Governing Body when there is no provision on that point in the
rules or regulations.2
6. TRADE UNIONS
The English law in the context of trade unions gave recognition to a theory that
there may exist a legal entity without any corporate existence. In Taft Vale Ry. v.
Amalgamated Society of Railway Servants,1 it was held that a registered trade union,
though not a corporate body was a legal entity, and could be sued in tort for the
wrongful acts of its officers. Similarly, in Bonsor v. Musicians Union,2 an action by a
member against a trade union for wrongful expulsion was upheld on the ground that
the trade union was a legal entity distinct from its members. The Indian Law on this
point presents no such anomaly for section 13 of the Trade Unions Act, 1926, 3
expressly provides that every registered Trade Union shall be a body corporate with
all attributes of a legal personality. Section 18 of the Act, however, enacts that no suit
shall lie against a registered Trade Union, its members or officers in respect of any act
done in contemplation or furtherance of a trade dispute to which a member of the Trade
Union was a party on the ground only that such act induces some other person to break a
contract of employment, or that it is an interference with the trade, business or
employment of some other person or with the right of some other person to dispose of his
capital or labour as he wills.
7. INSOLVENT
Liability for a tort committed by an insolvent is not a debt provable in insolvency
and is not discharged by insolvency. But an insolvent may be sued for a tort
committed by him either before or during insolvency, and if a decree is obtained
against him, the amount awarded is a debt provable in insolvency.
As regards torts committed against an insolvent, a distinction is to be drawn
between torts to the person and torts to property. A right of action in respect of a tort
resulting in injury exclusively to the insolvent’s property passes to the Official
Assignee or Receiver for the benefit of his creditors. But a right of action in respect
of a tort exclusively to the person, reputation or feelings of the insolvent, such as an
assault or defamation,1 seduction of a servant, 2 remains with the insolvent, and the

Official Assignee or Receiver cannot intercept the proceeds so far as they are
required for the maintenance of the insolvent or his family. But where a tort causes
injury both to the person and property of the insolvent, the right of action will be split
and will pass, so far as it relates to the property, to the Official Assignee or Receiver,
and will remain with the insolvent so far as it relates to his person. 3 In such a
case either the cause of action is divided between him and the trustee or they may
join together in one action in which case damages will be assessed under two
separate heads.4
8. THE STATE AND ITS OFFICERS
8(A) English Law
It is an ancient and fundamental principle of the English Constitution that the
‘King can do no wrong’. This maxim means, first, whatever is exceptionable in the
conduct of public affairs is not to be imputed to the King, nor is he answerable for it
personally to his people: for this doctrine would totally destroy the constitutional
independence of the Crown; and, secondly, that the prerogative of the Crown extends
not to do any injury.1 “He (The King) is not liable to be sued civilly or criminally for
a supposed wrong. That which the sovereign does personally, the law presumes will
not be wrong; that which the sovereign does by command to his servants, cannot be a
wrong in the sovereign because, if the command is unlawful, it is in law no
command, and the servant is responsible for the unlawful act, the same as if there had
been no command”.2 So the Crown was not liable in tort at common law for wrongs
committed by its servants in the course of employment not even for wrongs expressly
authorised by it.3 Even the heads of the department or superior officers could not be
sued for torts committed by their subordinates unless expressly authorised by them; 4
only the actual wrongdoer could be sued in his personal capacity. In practice, the
action against the officer concerned was defended by the Treasury Solicitor and the
judgment was satisfied by the Treasury as a matter of grace. Difficulty was, however,
felt when the wrongdoer was not identifiable. 5 The increased activities of the Crown
have now made it the largest employer of men and the largest occupier of property.
The above system was, therefore, proving wholly inadequate and the law needed a
change which was brought about by the Crown Proceedings Act, 1947. 6 Nothing in
the Act authorises proceedings in tort against the Crown in its private capacity (s.
40), or affects powers or authorities exercisable by virtue of the prerogative of the
Crown or conferred upon the Crown by statute (s.11(1)). Subject to this, the Act
provides that the Crown shall be subject to all those liabilities in tort to which, if it
were a person of full age and capacity, it would be subject (1) in respect of torts
committed by its servants or agents, provided that the act or omission of the servant
or agent would, apart from the Act, have given rise to a cause of action in tort against
that servant or agent or against his estate; (2) 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; (3) in respect of any breach of the duties attaching at common law to
the ownership, occupation, possession or control of property. Liability in tort also
extends to breach by the Crown of a statutory duty. It is also no defence for the
Crown that the tort was committed by its servants in the course of performing or
purporting to perform functions entrusted to them by any rule of the common law or
by statute. The law as to indemnity and contribution as between joint tortfeasors
shall be enforceable by or against the Crown and the Law Reform (Contributory
Negligence) Act, 1945,7 binds the Crown. Although the Crown Proceedings Act, 1947
preserves the immunity of the Sovereign in person and contains savings in respect of
the Crown’s prerogative and statutory powers, the effect of the Act in other respects,
speaking generally, is to abolish the immunity of the Crown in tort and to equate the
Crown with a private citizen in matters of tortious liability. The Crown is now
vicariously liable for torts committed by its servants in the course of their employment
if committed in circumstances which would render a private employer liable. So in
Home Office v. Dorset Yacht Co.,8 the Crown was held liable for the damage caused by
runaway borstal trainees who escaped because of the negligence of the borstal officers
in the exercise of their statutory function to control the trainees.
The European Court of Justice holds the member states liable for damages for
breach of community law on the basis of a principle not expressly mentioned but
inherent in the system of the Treaty. A State can be held liable irrespective of which
organ of the State was responsible for the breach, the legislature, the executive or the
judiciary. The right to damages is dependent on three conditions. First, the rule of
law which was infringed must have intended to confer rights on individuals.
Secondly, the breach of this rule of law must have been sufficiently serious. Finally
there must have been a direct causal link between breach of the obligation imposed
on the State and the damage which was sustained by the injured parties.9
The English law is likely to develop further because of enforcement of the Human
Rights Act, 1998 from 2nd October, 2000. The Act gives effect to the European
Convention on Human Rights. The Act provides that it is unlawful for any public
authority10 to act in a way which is incompatible with a convention right and a person
who considers that his rights have been violated can sue the public authority for
damages. Many of the convention rights are also recognised by the common law
which also provides remedies for their infringement. A claim under the Act will
directly arise when the right infringed is recognised by the Act as a convention right
but is not recognised by the common law.
8(B) Indian Law
(i) Historical Background
The maxim that the ‘King can do no wrong’ and the resulting rule of the common
law that the ‘Crown was not answerable for the torts committed by its servants’ have
never been applied in India.1 The Crown assumed the sovereignty of British India,
which was till then administered by the East India Company, by the Government of
India Act, 1858. Section 65 of this Act, which is the parent source of the law relating
to the liability of the Government, provided that : “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 for India as they could have done against the
said Company.” This provision was continued by the succeeding Government of
India Acts,2 and is also continued by Article 300(1) of the Constitution of India
which reads : “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
and may, subject to any provisions which may be made by Act of Parliament or of the
legislature of such State 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 or been sued if this Constitution had not been enacted.” It may be mentioned that
the Heads of State, i.e., the President of India, and the Governors of States have
personal immunity and they are not answerable to any court, as provided in
Article 361, for the exercise and performance of the powers and duties of their offices.
The Union of India and the States of the Union are juristic persons and they can sue
and be sued, but the extent of their liability by the chain of Constitution Acts beginning
with the Act of 1858 and ending with the Constitution of India is the same as was of
the Secretary of State for India in Council under section 65 of the Act of 1858 and the
words in that section “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 of India as they could have done against the said Company” by incorporation
apply to the Union and the States as they applied to the East India Company. In other
words, the extent of liability of the Union and the States under Article 300(1) of the
Constitution is the same as was the liability of the East India Company. But this
statement is subject to the new liabilities imposed by the Constitution3 or laws made
under it.
The often quoted authority on the construction of section 65 of the 1858 Act is the
decision of the Supreme Court of Calcutta rendered in 1861 in the case of Peninsular
and Oriental Steam Navigation Co. v. Secretary of State for India.4 In that case a
servant of the plaintiff company was proceeding on a highway in Calcutta driving a
carriage drawn by a pair of horses. Due to the negligence of the servants of the
Government employed in the Government Dockyard at Kidderpore in carrying a
piece of iron funnel needed for repair of a steamer, an accident happened in which
one of the horses driving the plaintiff’s carriage was injured. The plaintiff company
sued the Secretary of State for India for damages for the damage caused due to the
negligence of the servants of the Government. In holding that for such an accident
caused by the negligence of its servants in doing acts not referable to Sovereign
powers the East India Company would have been liable and so the Secretary of State
for India was liable, PEACOCK, C.J., who delivered the judgment of the court, drew a
distinction between the acts done by the public servants in the delegated exercise of
sovereign powers and acts done by them in the conduct of other activities and made
the following pertinent observation: “In determining the question whether the East
India Company would, under the circumstances, have been liable to an action under
the general principles applicable to Sovereigns and States, and the reasoning deduced
from the maxim of the English law that the ‘King can do no wrong’ would have no
force. The East India Company were not Sovereigns and, therefore, could not claim
all the exemptions of a Sovereign; and they were not the public servants of
Government and, therefore, did not fall under the principle of the cases with regard to
the liabilities of such persons, but they were a Company to whom sovereign powers
were delegated and who traded on their own account and for their own benefit, and
were engaged in transactions partly for the purposes of Government, and partly on
their own account, which without any delegation of Sovereign rights might be carried
on by private individuals. There is a great and clear distinction between acts done in
the exercise of what are usually termed sovereign powers, and acts done in the
conduct of undertakings which might be carried on by private individuals without
having such powers delegated to them.”5
The tort in the case of Peninsular and Oriental Steam Navigation Co.,6 was
committed by the servants of the Government in the course of a trading activity and
the case was not directly concerned with acts done in the exercise of sovereign
powers. The Madras7 and Bombay8 High Courts, therefore, did not accept the
reservation made by PEACOCK, C.J., that the Government was not liable if the tort
was committed in the exercise of sovereign powers and the view expressed by these
High Courts was that the Government would also be liable for torts committed in the
exercise of sovereign powers except when the act complained of amounted to an act
of State.9 The Calcutta High Court,10 however, followed the view taken by
PEACOCK, C.J.
(ii) Sovereign Immunity
The point as to how far the State was liable in tort first directly arose in India
before the Supreme Court in State of Rajasthan v. Vidyawati.1 In that case the claim
for damages was made by dependants of a person who died in an accident caused by
compensation. U.P.Sharma v. Jabalpur Corporation & Others, AIR 2010 (NOC) 919 (M.P.),
wherein a man skidded from his motorcycle because of sand lying on public street and suffered
injuries. Failure was held to be on part of Municipal Corporation and was thus held liable for
payment of compensation; See further on similar issue, P. Ravichandran v. Government of Tamil
Nadu, (2012) 109 AIC 875 (Mad) : (2011) 6 CTC 636.
12
. Gorringe v. Calderdale Metropoliton Borough Council, (2004) 2 All ER 326 (HL). See further
Stovin v. Wise, (1996) 3 All ER 801 (HL) and Rajkot Municipal Corporation v. Manjulaben
Jayantilal Nakum, AIR 1998 SC 640 discussed at pp. 475, 476; See further, Regional Transport
Officer v. P.S.Rajendran (2010) 2 LW 440 (Madras High Court).
1
. Brown v. Lewis, (1896) 12 TLR 455; Bradley Egg Farm Ltd. v. Clifford, (1943) 2 All ER 378,
Prole v. Allen, (1950) 1 All ER 476.
2
. AIR 1974 Punj 256 : (1974) 76 Pun LR 416 : ILR (1976) 1 Punj 279. See also, ILR (1976) 1
Cal 57.
1
. (1901) AC 426 : 85 LT 147 (HL). It was also held that a registered Trade Union has a right to
sue; see, National Union of General and Municipal Workers v. Gillan, (1946) KB 81 : (1945) 2 All
ER 593; Willis v. Brooks, (1947) 1 All ER 191; B.M.T.A. v. Salvadori, (1949) Ch 556. Sec. 2(1) of
the Trade Union and Labour Relations Act, 1974 provides that a Trade Union shall not be treated as
a corporate body though it can sue or be sued in its name. After this legislation it has been held that
a trade union has no sufficient personality to be a plaintiff in a libel action; Electrical and Plumbing
Union v. Times News Papers, (1980) QB 585 : (1980) 3 WLR 98. For an action against an
unregistered Union where liability was imposed see, Heatons Transport (St. Helens) Ltd. v.
Transport and General Workers Union, (1973) AC 15 : (1972) 3 WLR 431 (HL).
2
. (1956) AC 104 (HL).
3
. This corresponds to sections 13 and 14 of the Trade Union and Labour Relations Act, 1974
and sections 15 and 16 of the Employment Act, 1982. The provisions of the English Acts are
different in scope. The English law now treats trade unions as natural persons subject to rule of law
with certain qualifications. SALMOND and HEUSTON, Law of Torts, 20th edition, p. 424.
1
. Howard v. Crowther, (1841) 8 M & W 601.
2
. Hodgson v. Sidney, (1866) LR 1 Ex. 313.
3
. Beckham v. Drake, (1849) 2 HC 579, 632.
4
. Wilson v. United Counties Bank, (1920) AC 102 : 122 LT 76.
1
. Blackstone, Vol. I, p. 246.
2
. Tobin v. The Queen, (1864) 16 CB (NS) 310, 354.
3
. Canterbury (Viscount) v. A.H. General, (1842) 1 Ph 306; High Commr. for India & Pakistan
v. Lall, (1948) 50 Bom LR 649 : AIR 1948 PC 121: 75 IA 225; Union of India v. F. Gian Chand
Kasturi Lal, (1954) 56 PLR 68 : AIR 1954 Punj 159 : ILR (1954) Punj 602.
4
. Raleigh v. Goschen, (1898) 1 Ch 73 : 77 LT 429; Bainabridge v. The Postmaster General,
(1906) 1 KB 178. Subject to a statutory provision a government department enjoyed crown
immunity, Minister of Supply v. British ThompsonHouston Co., (1943) KB 478.
5
. Royster v. Cavey, (1947) KB 204 : (1946) 2 All ER 642.
6
. 10 & 11 Geo., VI, c. 44.
7
. 8 & 9 Geo., VI, c. 28.
8
. Home Office v. Dorset Yacht Co., (1970) AC 1004 : (1970) 2 All ER 294 (HL). See further, M.
v. Home Office, (1993) 3 All ER 537 (HL), p. 553 : (1994) 1 AC 377 : (1993) 3 WLR 433, where
the legal position before and after the 1947 Act is discussed. Substantial portion of the text under
the title ‘8(A) English Law’ from 23rd edition of this book is quoted with approval in State of
Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083, p. 2088 : (2000) 5 SCC 712.
9
. Cases C46 and 48/93 Brasserie du Pecheur SA v. Germany; R v. Secretary of State for
Transport Exp. Factortome Ltd., (1996) 1 ECR 1029; R v. Secretary of State for Transport Exparte
Factortome Ltd., (1999) 4 All ER 906, p. 916 (HL).
10
. For meaning of ‘public authority’ as defined in the Act see Poplar Housing and Regeneration
Community Association Ltd. v. Donghue, (2001) 4 All ER 604 : (2001) 3 WLR 183 : (2001) 2 FLR
284; R (on the application of Heather) v. Leonard Cheshire Foundation, (2002) 2 All ER 936 (CA).
the negligence of the driver of a jeep maintained by the Government for official use
of the Collector of Udaipur while it was being brought back from the workshop after
repairs. The Rajasthan High Court took the view that the State was liable, for “the
State is in no better position insofar as it supplies cars and keeps drivers for its civil
service”. The Supreme Court endorsed the view taken by the High Court; S INHA,
C.J., in delivering the judgment of the court quoted approvingly the judgment of
PEACOCK, C.J., but he also “from the point of view of first principles” made the
following observations: “The immunity of the Crown in the United Kingdom was
based on the old feudalistic notions of justice, namely, that the King was incapable of
doing a wrong, and, therefore, of authorising or instigating one, and that he could not
be sued in his own courts. In India, ever since the time of the East India Company,
the Sovereign has been held liable to be sued in tort or in contract and the common
law immunity never operated in India. 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 for the tortious act of its servant”.2
The question of liability of the State again came up for consideration before the
Supreme Court in Kasturilal Ralia Ram Jain v. State of U.P. 3 In this case, a partner
of Kasturilal Raliaram, a firm of jewellers of Amritsar, went to Meerut for selling
gold and silver. He was taken into custody at Meerut by police constables on the
suspicion of possessing stolen property. He was kept in police lockup and the gold
and silver recovered from him on search were kept in the custody of the police in the
police Malkhana. He was released on the next day and sometime later the silver
seized from him was returned. The gold could not be returned to him as the Head
constableincharge of the Malkhana misappropriated it and fled to Pakistan. A suit
was filed against the State of U.P. for return of the ornaments or in the alternative for
compensation. It was found that the police officers had failed to follow the U.P.
Police Regulations in taking care of the gold. The Supreme Court held the State not
liable on the view that the tort was committed by the police officers in the exercise of
delegated sovereign powers. The court speaking through G AJENDRAGADKAR, C.J.,
fully approved the decision of PEACOCK, C.J., in the case of Peninsular and Oriental
Steam Navigation Co.,4 stating per incuriam that it “enumerated a principle which
has been consistently followed in all subsequent decisions”Error: Reference source
not found and observed: “It must be borne in mind that when the State pleads
1
. Union of India v. Ashok Kumar, (2010) 3 All LJ 390 : (2010) 79 ALR 430; In State of Bihar v.
Abdul Majid 1954 SCR 786 : AIR 1954 SC 245, Supreme Court upheld the right of a government
servant to sue the government for recovery of arrears diluting the concept of immunity.
2
. Government of India Act, 1915, section 32; Government of India Act, 1935, section 176(1).
3
. See, title 8(B)(iii) Public Law Wrongs, pp. 49 to 64.
4
. (18681869) 5 Bom HCR App 1 P. 1 (Curiously the case is not reported in any Calcutta Law
Journal.)
5
. (18681869) 5 Bom HCR App 1 P. 1.
6
. (18681869) 5 Bom HCR App 1 P. 1 .
7
. Secretary of State for India v. Hari Bhanji, ILR (1882) 5 Mad 273.
8
. Rao v. Advani, (1949) 51 Bom LR 342, p. 3967 : AIR 1949 Bom 277. In appeal to the
Supreme Court MUKERJEE, J., alone dealt with this question and he approved the view of the
Madras and Bombay High Courts, see, Province of Bombay v. K.S. Advani, (1950) SCR 621, p.
696 : AIR 1950 SC 222 : 1950 SCJ 451. Law Commission of India in its first report in 1956 also
accepted this view. This view also finds support from two Privy Council decisions viz : Forester v.
Secretary of State for India in Council, (1872) 1 IA Supp. 10 and Secretary of State for India v.
Moment, (1912) 40 IA 48.
9
. For Act of State, see, title 1, Chapter VI.
10
. Nobin Chunder Dey v. Secretary of State for India, ILR (187576) 1 Cal 11 : 24 CWR 309.
1
. 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 : (195865) ACJ 296. Followed in Kanti
Devi v. State of U.P. (2012) 1 All LJ 481 : (2011) 75 ACC 816.
2
. (195865) ACJ 296, p. 304.
3
. AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR 955.
4
. Footnote 95, p. 46, supra.
immunity against claims for damages resulting from injury caused by negligent acts
of its servant, the area of employment referable to sovereign powers must be strictly
determined. Before such a plea is upheld, the court must always find that the
impugned act was committed in the course of an undertaking or employment which
is referable to the exercise of delegated sovereign power”. 5 In upholding the defence
of immunity pleaded by the State of U.P., G AJENDRAGADKAR, C.J., further held:
“The act of negligence was committed by police officers while dealing with the
property of Ralia Ram which they had seized in the 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 by the employees of the respondent during
the course of their employment; but the employment in question being of the
category which can claim the special characteristic of sovereign power, the claim
cannot be sustained.”Error: Reference source not found It may also be mentioned that
Vidyawati’s case6 was distinguished as being confined to tortious liability not arising
from the exercise of sovereign power.
The decision of the Supreme Court in Kasturilal’s case7 is not satisfactory and has
been criticised by a leading constitutional authority of the country. 8 It proceeds upon
a wrong impression that the decision of P EACOCK, C.J.,9 was uniformly followed by
failing to take notice that it was dissented to by the Madras and Bombay High
Courts;10 it fails to appreciate that when in modern times there is no logical or
practical basis for the rule of State immunity which has been abolished even in the
country of its origin,11 more reasonable view to take in the context of our Constitution
was that the State will always be liable for the torts committed by its servants in the
course of employment except when the act complained of amounted to an act of
State; and it omits to consider that even if the statutory power to arrest, search and
seize the property recovered may be described to pertain to the sphere of sovereign
powers, the duty to take care for the protection of the property and the obligation to
return the same to the rightful claimant after the necessity to retain them ceases were
more in the nature of the duties of a statutory or a contractual bailee and did not fall
within the sphere of sovereign powers.12
Although the decision of the Supreme Court in Kasturilal’s case is yet to be
overruled, subsequent decisions of the court have greatly undermined its authority
and attenuated the sphere of sovereign immunity. As observed by a three judge bench
“much of its efficacy as a binding precedent has been eroded”13
5
. AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR 955.
6
7
8
. SEERVAI, Constitutional Law of India, 2nd edition, pp. 113739, 1992.
9
10
. Text and footnotes 98 and 99, p. 46, supra.
11
. State of Rajasthan v. Vidyawati, AIR 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 :
(195865) ACJ 296, p. 304; Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890 : 1974 ACJ
296 : (1974) 1 SCC 690, p. 695 (“Today, hardly any one agrees that the stated ground for exempting
the sovereign from suing is either logical or practical”). See further, N. Nagendra Rao & Co. v.
State of Andhra Pradesh, AIR 1994 SC 2663 : (1994) 5 JT 572 and Common Cause a Registered
Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667, which contains an elaborate
discussion to show that KASTURILAL was not correctly decided and the doctrine of sovereign
immunity has no relevance in the present day context.
12
. See, text and footnotes 16 to 19, p. 49, infra.
13
. Common Cause, a Registered Society v. Union of India, supra, p. 3002, see to the same effect
State of Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083, p. 2090 : (2000) 5 SCC
712.
In State of Gujarat v. Memon Md.,14 certain goods seized under the Sea Customs Act
were not properly kept and were disposed of by order of a Magistrate. On a suit for the
value of the goods against the State, the Supreme Court held that when the seizure was
illegal there arose bailment and a statutory obligation to return the goods and the suit
was maintainable. Similarly in Smt. Basava Kom Dyamogonda Patil v. State of
Mysore,15 certain articles seized by the police were produced before a Magistrate who
directed the SubInspector to keep them with him in safe custody to get them verified
and valued by a goldsmith. The articles were lost while they were kept in the police
guardroom. In a proceeding taken under section 517 of the Code of Criminal
Procedure, 1898, the Supreme Court held that when “there is no prima facie defence
made out that the State or its officers had taken due care and caution to protect the
property,”16 the court can order the State to pay the value of the property to the owner.
The court also observed: “As the seizure of property by the police amounts to a clear
entrustment of the property to a Government servant, the idea is that the property
should be restored to the original owner after the necessity to retain it ceases.”17
(iii) Public Law Wrongs
The cases of Rudul Shah v. State of Bihar,1 Sebastin M. Hongray v. Union of
India,2 Bhim Singh v. State of J & K3 and SAHELI a Woman’s Resources Centre v.
Commr. of Police, Delhi,4 lead to the inference that the defence of sovereign
immunity is not available when the State or its officers acting in the course of
employment infringe a person’s fundamental right to life and personal liberty as
guaranteed by Article 21 of the Constitution. In the case of Rudul Shah v. State of
Bihar,5 which arose on a petition under Article 32 of the Constitution complaining
prolonged detention of the petitioner even after his acquittal, the Supreme Court
directed the State to pay Rs. 30,000 as interim measure without precluding the
petitioner from bringing a suit to recover further damages. The court while overruling
the objection that the petitioner should be left entirely to the remedy of a suit and no
damages or compensation should be allowed even as an interim measure observed:
“The petitioner can be relegated to the ordinary remedy of a suit if his claim to
compensation was factually controversial, in the sense that a civil court may or may
not have upheld his claim. But where the court has already found, as in the present
case, that the petitioner’s prolonged detention in prison after his acquittal was wholly
unjustified and illegal, there can be no doubt that if the petitioner files a suit to
recover damages for his illegal detention, a decree for damages would have to be
passed in that suit.Error: Reference source not found In the case of Sebastin M.
Hongray,6 where two persons were taken into custody by Army authorities in
Manipur but were not produced in obedience to a writ of habeas corpus and it was
held that those persons must have met an unnatural death while in Army custody, the
Supreme Court directed the Union of India to pay exemplary costs of rupees one lac
each to the wives of those persons. Although the word ‘compensation’ is not used in
the decision, it is obvious that the court awarded compensation 7 to the dependants
14
. AIR 1967 SC 1885 : (1967) 2 SCWR 387 : (1968) 1 SCJ 273.
15
. AIR 1977 SC 1749 : 1977 Cri LJ 1141 : (1977) 2 SCJ 289.
16
. AIR 1977 SC 1749 , p. 1752.
17
. AIR 1977 SC 1749 , p. 1751. The Gauhati High Court in State of Assam v. Nizamuddin
Ahmad, AIR 1999 Gau 62 followed Kasturilal without adverting to cases in footnotes 16 and 17
above; M/s. Ace International & Another v. State of Maharashtra (2013) 5 AIR Bom R 919 (in
respect of commodities seized under the Essential Commodities Act, 1955).
1
. AIR 1983 SC 1086 : 1983 Cri LJ 1644 : (1983) 4 SCC 141 : (1983) 3 SCR 508.
2
. (1984) 3 SCC 82 : AIR 1984 SC 1026.
3
. (1985) 4 SCC 677 : AIR 1986 SC 494 : 1986 All LJ 653 : 1986 Cri LJ 192.
4
. AIR 1990 SC 513 : AIR 1984 SC 1026 : (1990) 1 SCC 422.
5
. Rudul Shah v. State of Bihar, AIR 1983 SC 1086 : (1983) 4 SCC 141 : 1983 Cri LJ 1644 :
(1983) 3 SCR 508.
6
. (1984) 3 SCC 82 : AIR 1984 SC 1026; See also, Priya v. State of Tamil Nadu (2011) 1 MWN (Cri)
462.
7
. See, Bhim Singh v. State of J. & K., (1985) 4 SCC 677, p. 686 : AIR 1986 SC 494 : 1986 All LJ
653 : 1986 Cri LJ 192; see also, Smt. Thiyam Ongbi Tanoubi Leima v. State of Manipur & Others
against the Union of India for the action of the army authorities in murdering the two
persons. Bhim Singh’s case8 was also a case under Article 32 of the Constitution. The
petitioner who was an MLA was illegally arrested and detained to prevent him from
attending the assembly session and the Supreme Court directed the State of Jammu
and Kashmir to pay Rs. 50,000 as compensation to the petitioner. In the case of
SAHELI9 the Supreme Court in a public interest writ petition allowed Rs. 75,000 as
damages against the Delhi administration payable to the mother of a child of nine
years who died due to beating and assault by a Delhi police officer. The court made a
reference to State of Rajasthan v. Mst. Vidyawati10 and Peoples Union of Democratic
Rights v. Police Commissioner, Delhi11 and observed: “It is well settled now that the
State is responsible for the tortious acts of its employee”. 12 The cases of Rudul Shah
and Bhimsingh were approved by a Constitution Bench of the Supreme Court in
M.C. Mehta v. Union of India,13 which laid down that compensation for violation of
fundamental rights can be allowed in exceptional cases under the writ jurisdiction but
normally the party aggrieved should seek his remedy by a suit in the civil court.
The Supreme Court cases discussed above14 did not refer to the doctrine of
sovereign immunity or the case of Kasturilal on which the following submission was
made in the 22nd edition of this book at p. 46: ‘“It is submitted that that case, even if
not overruled, can be distinguished on the ground that it did not consider the nature
of liability of the State when there is deprivation of a fundamental right. The liability
of the State to pay compensation for deprivation of the fundamental right to life and
personal liberty (or any other fundamental right for that matter) is a new liability in
public law created by the Constitution and not vicarious liability or a liability in tort.
For this reason, this new liability is not hedged in by the limitations, including the
doctrine of sovereign immunity, which ordinarily apply to State’s liability in tort.
This view is strongly supported by the decision of the Privy Council in Maharaj v.
AttorneyGeneral of Trinidad and Tobago (No. 2). 15 Section 1 of the Constitution of
Trinidad and Tobago recognises amongst other “the right of the individual of life,
liberty, security of person and the right not to be deprived thereof except by due
process of law”. Any person alleging contravention of this right and other human
rights and freedoms recognised under sections 1 and 2 can apply under section 6 for
redress to the High Court which is empowered to issue appropriate orders, writs and
directions for enforcement or securing the protection of provisions of the aforesaid
sections. The appellant who was a barrister was committed to seven days
imprisonment by a judge of the High Court which committal was set aside by the
Privy Council16 in appeal on the ground that particulars of the specific nature of the
contempt were not told to the appellant and the judge had thereby failed to observe a
fundamental rule of natural justice. The appellant had in the meantime applied for
redress under section 6 on the ground that he was deprived of his liberty without due
process of law. This application was dismissed by the High Court, but appellant
AIR 2015 (NOC 122) 52..
8
. Bhim Singh v. State of J. & K., (1985) 4 SCC 677, p. 686 : AIR 1986 SC 494 : 1986 All LJ 653
: 1986 Cri LJ 192.
9
. SAHELI a Woman’s Resources Centre v. Commr. of Police, Delhi, AIR 1990 SC 513 : (1990)
1 SCC 422.
10
. AIR 1962 SC 933 : 1962 Supp (2) SCR 989; See also, S. Anand v. State of Tamil Nadu (2012)
5 Mad LJ 772.
11
. (1990) 1 SCC 422 : AIR 1980 SC 513. In this case a labourer was beaten to death by Delhi
Police and compensation of Rs. 75,000 was allowed.
12
. AIR 1990 SC 513, p. 516. See further, State of Maharashtra v. Ravikant S. Patil, (1991) 2
SCC 373 : (1990) 1 SCC 422, where in a case of illegal handcuffing and parading a person by a
police subinspector the State was directed to pay Rs. 10,000 as compensation.
13
. (1987) 1 SCC 395, pp. 408, 409 : AIR 1987 SC 965.
14
. See, text and footnotes 19 to 32, supra.
15
. Maharaj v. AttorneyGeneral of Trinidad and Tobago (No. 2), (1978) 2 All ER 670 : 1979 AC
385(PC).
16
. Maharaj v. AttorneyGeneral of Trinidad and Tobago, (1977) 1 All ER 411 : 1979 Crim LR
355 : 122 SJ 179 (PC).
again came up in appeal, to the Privy Council. The Privy Council held 17 that section 6
of the Constitution impliedly allowed the High Court to award compensation as that
may be the only practicable form of redress in some cases. The Privy Council also
held that as the appellant’s committal was in violation of the rules of natural justice, he
was deprived of his liberty without due process of law in contravention of section 1 of
the Constitution and was entitled to claim compensation from the State under section 6
thereof. In meeting the argument that a judge cannot be made personally liable for
anything done or purporting to be done in the exercise or purported exercise of his
judicial functions, LORD DIPLOCK speaking for the majority observed: “The claim for
redress under section 6(1) for what has been done by a judge is a claim against the
State for what has been done in the exercise of judicial power of the State. This is not
vicarious liability: it is liability of the State itself. It is not a liability in tort at all: it is a
liability in public law of the State, not of the judge, which has been created by sections
6(1) and (2) of the Constitution”.18 As to the measure of compensation L ORD DIPLOCK
held: “The claim is not a claim in private law for damages for the tort of false
imprisonment under which the damages recoverable are at large and would include
damages for loss of reputation. It is a claim in public law for compensation for
deprivation of liberty alone. Such compensation would include any loss of earnings
consequent on the imprisonment and recompense for the inconvenience and distress
suffered by the appellant during his incarceration.”19
The above submission was accepted by the Supreme Court in Nilabati Behra v.
State of Orissa.20 In that case the petitioner’s son died as a result of injuries inflicted
on him while he was in police custody. A letter sent by the petitioner to the Supreme
Court was treated as a petition under Article 32 of the Constitution. The Supreme
Court directed the State of Orissa to pay Rs. 1,50,000 as compensation to the
petitioner. In directing so VERMA, J, observed: “Award of compensation in a
proceeding under Article 32 by this court or by the High Court under Article 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 defence in private law in an
action based on tort. This is a distinction between the two remedies.”Error: Reference
source not found VERMA J. further explained: “It is sufficient to say that the decision
of this court in Kasturilal upholding the State’s plea of sovereign immunity for
tortious acts of its servants is confined to the sphere of liability in tort, which is
distinct from the State’s liability for contravention of fundamental rights to which the
doctrine of sovereign immunity has no application in the constitutional scheme, and
is no defence to the constitutional remedy under Articles 32 and 226 of the
Constitution which enables award of compensation for contravention of fundamental
rights when the only practicable mode of enforcement of the fundamental rights can
be the award of compensation.” 21 Concurring with VERMA J, DR. ANAND J. in the
17
. Maharaj v. AttorneyGeneral of Trinidad and Tobago (No. 2), (1978) 2 All ER 670 : 1979 AC 385
(PC).
18
. Maharaj v. AttorneyGeneral of Trinidad and Tobago (No. 2), (1978) 2 All ER 670, p. 679.
19
. Maharaj v. AttorneyGeneral of Trinidad and Tobago (No. 2), (1978) 2 All ER 670, p. 680 See
also, Prempal v. Commissioner of Police (2010) 168 DLT 285, wherein the Delhi High Court
awarded compensation for undue harassment, torture, illegal detention, false implication and loss of
earning.
20
. AIR 1993 SC 1960, p. 1969 : (1993) 2 SCC 746; Kirandeep Kaur v. State of Punjab & Others
(CWP No.5710/1998 (O&M) Decided 19.11.2014 (SB) Ritu Bahri J. Punjab & Haryana High
Court; State of Kerala v. M.Gopalan (2015) 1 KLT (SN 84) 64; Smt. Selina Aktar alias Khatoon &
Others v. Union of India & Others (WP (C) No.388/2002) Decided 09.04.2014 (DB) Deepak Gupta
CJ & S.C. Das J. (as per S.C.Das J.) Tripura High Court; Shri Balawan Pala v. State of Meghalaya
(WP (C) No.66/2012) Decided 21.03.2014 (SB) T. Nandakumar Singh J. Meghalaya High Court.
Smt. Glotilda Syiem v. Union of India & Others AIR 2015 Megh 12; Taskinuddin & Others v. State
(NCT of Delhi) & Another (2013) 138 DRJ 614.
21
. AIR 1993 SC 1960, pp. 1967, 1968. See further, Charanjit Kaur v. Union of India, AIR 1994 SC
1491 : (1994) 2 SCC 1 (L.Rs. of an army officer who died in mysterious circumstances giving rise
to inference of acts of omissions and commissions of the concerned authorities, allowed Rs. 6 lakhs
same case observed: “The purpose of the public law is not only to civilize public
power but also to assure the citizen that they live under a legal system which aims to
protect their interests and preserve their rights—This court and the High Court being
the protectors of the civil liberties of the citizen, have not only the power and
jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose
fundamental rights under Article 32 of the Constitution of India are established to
have been flagrantly infringed by calling upon the State to repair the damage done by
its officers to the fundamental rights of the citizens, notwithstanding the right of the
citizen to the remedy by way of a suit or criminal proceedings. The State of course
has the right to be indemnified by and take such action as may be available to it against
the wrongdoer in accordance with law through appropriate proceedings. Of course relief
in exercise of the power under Article 32 or 226 would be granted only once it is
established that there has been an infringement of fundamental rights of the citizen and
no other form of appropriate remedy in the facts and circumstances of the case is
possible.”22 Dr. ANAND J. also observed: “There is a great responsibility on the police
or prison authorities to ensure that the citizen in its custody is not deprived of his
right to life.”23
under Article 32 as compensation as also the special family pension and the children allowance); Inder
Singh v. State of Punjab, AIR 1995 SC 312 1949 : (1995) 3 SCALE 418 : (1994) 3 SCC 275 (L.Rs. of
each of the seven persons abducted and presumably killed by Punjab Police were awarded Rs. 1.5
lakhs under Article 32 as compensation against the State); Punjab and Haryana High Court Bar
Association v. State of Punjab, 1996 (4) SCALE 416, pp. 420, 421 : (1996) 4 SCC 742 : (In this
case an advocate K was abducted by the police of Punjab and killed. An innocent person H was
falsely implicated by the police as the killer. Following Nilbati Behra’s case, the parents of
advocate K were awarded 10 lacs as compensation and the innocent person 2 lacs from the State of
Punjab in a public interest petition under Article 32); Peoples Union for Civil Liberties v. Union of
India, AIR 1997 SC 1203 : (1997) 3 SCC 433 (In this case following Nilabati Behra compensation
of Rs. 1 lac was allowed to dependants of a person who was abducted and shot dead in a false
encounter by police); Postsangbam Ningoi Thokchan v. General Officer Commanding, AIR 1997
SC 3534 (Following Nilbati Behra mothers of boys who were taken into custody by army
authorities and who very likely suffered custodial death were each awarded Rs. 1,25,000.);
Punjab and Haryana High Court Bar Association v. State of Punjab, JT 1997 (10) SC 502 :
(1996) 4 SCC 742 (Following Nilbati Behra parents of an advocate who was abducted with his
wife and child and very likely killed by the police were allowed 10 lakhs and a person falsely
implicated by the police for the crime allowed 2 lakhs as compensation); Milkiat Singh v. State of
U.P., AIR 1999 SC 1522 : (1999) 9 SCC 351 (Father of a Sikh youth who was taken in custody
by police and later shown to be killed in encounter was allowed Rs. 5 lakhs as compensation);
Veena Sippy v. Narayan Dumbre (2012) 114 (2) Bom LR 1103 : (2012) 3 AIR Bom R 30
(Following Nilbati Behra, petitioner was held entitled to seek compensation for violation of her
fundamental rights under Article 21 of the Constitution on grounds of her illegal detention by
police authorities); Damji Tingsa Pada v. Nagpur Central Jail (2012) 1 AIR Bom R 279 (The
petitioner was detain beyond the period he was liable to be detained. He was held entitled to
compensation); Ganeshan v. State of Tamil Nadu & Others (2012) 2 CTC 848, (parents of the
deceased claimed compensation under Art.226 on the ground that their only son died in a petrol
bomb blast caused by some political party. Claim was allowed by holding the State was bound to
protect his life and liberty).
22
. AIR 1993 SC 1960, pp. 1972, 1973 : (1993) 2 SCC 746. Neelbati Behra and DR. ANAND J.’s
observation in this case were relied upon by the court of appeal of New Zealand in the case of
Simpson v. Attorney General (Baigent’s case), 1994 NZLR although the New Zealand Bill of Rights
Act, 1990 does not contain any provision to provide a remedy for infringement of the Rights.
Baigent’s case has not been followed in Australia. The view in Australia is that a constitution is not
to be construed as conferring a right to get damages additional to those provided by the common
law : Kruger v. The Commonwealth, (1997) 71 ALJR 991 pp. 1003 (BRENNAN C.J.), 1047, 1048
(GAUDRON, J.), 1061 (GUMMOW J.); see also, Smt. Glotilda Syiem v. Union of India AIR 2015
Megh 12.
23
. AIR 1993 SC 1960, p. 1972 : (1993) 2 SCC 746. These observations were quoted and relied upon
by the House of Lords (LORD BENGHAM) in R (on the application of Amin) v. Secretary of State for
the Home Department, (2003) 4 All ER 1264, p. 1280 and it was held: “such persons must be
protected against violence or abuse at the hands of state agents. They must be protected against self
harm [See Reeves v. Commissioner of Police of the Metropolis, (1999) 3 All ER 87]. Reasonable
Nilabati Behera’s case was followed in D.K. Basu v. State of West Bengal, 24 which
laid down general principles relating to custodial death cases. The judgment in this
case was delivered by DR. ANAND J., who reviewed the earlier authorities. It was
reiterated that the relief of compensation against the State based “on the principles of
strict liability” under the public law is one to which the defence of sovereign immunity
does not apply and that this relief is in addition to the traditional remedies and the
compensation awarded in a given case is adjusted against any amount awarded to the
claimant by way of damages in a civil suit. It was also held that in the assessment of
compensation under Article 32 or 226 “the emphasis has to be on the compensatory and
not on the punitive element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender as awarding appropriate punishment for the
offence (irrespective of compensation) must be left to the criminal court in which the
offender is prosecuted, which the state in law is duty bound to do.”25 It may be here
mentioned that DR. ANAND J., in Nilabati Behera had observed that “the compensation
against the State under Article 32 or 226 was in the nature of “exemplary damages”26. As
exemplary damages are not compensatory but punitive,27 there is some contradiction on
this point between Nilabati Behera and D.K. Basu wherein it was held that in assessing
compensation stress has to be on compensatory element and not on the punitive element.
In State of Andhra Pradesh v. Challa Ramakrishna Reddy 28 a prisoner in jail as
under trial died as a bomb was thrown by some miscreants in the cell where he was
lodged. In a suit by the dependants of the deceased against the State it was found that
the jail authorities were negligent in properly guarding the jail inspite of warning that
some miscreants were likely to make an attempt on the life of the prisoner. On these
facts, the doctrine of sovereign immunity was held to have no application as this was
a case of a violation of the fundamental right under Article 21 and it made no
difference that the claim was laid through a suit and not under Article 32 or 226.
Nilabati Behera’s case was also followed in Consumer Education and Research
Centre v. Union of India.29 In this case, which initiated with a petition filed under
Article 32, it was held that “right to health, medical aid to protect the health and
care must be taken to safeguard their lives and persons against the risk of avoidable harm (p.
1280)”. The House of Lords further held that when death occurs in custody there is also a duty to
hold a public enquiry with opportunity for relatives of the deceased to participate “to ensure as far
as possible that the full facts are brought to light that the suspicion of deliberate wrongdoing (if
unjustified) is allayed, that dangerous practices and procedures are rectified and that those who have
lost their relative may atleast have the satisfaction of knowing that lessons learned from his death
may save the lives of others” (p. 2181). See further R (on the application of Middeton) v.West
Somerset Coroner, (2004) 2 All ER 465 (HL) (Coroners investigation as now read compatible with
Human Right Act, 1998). R (on the application of JL) v. Secretary of State for Justice, (2009) 2 All
ER 521 (HL) (prisoner in custody attempting suicide suffering serious injury enhanced investigation
required by the State); R (on the application of D) v. Secretary of State for Home Department,
(2006) 3 All ER 946 (HL). In India also by Criminal Procedure (Amendment) Act, 2005, section
176 of the Cr.P.C. has been amended to provide that in the case of death or disappearance of a
person, or rape of a woman while in the custody of the police, there shall be a mandatory judicial
enquiry in which relations of the victim will be allowed to be present and in case of death,
examination of the dead body shall be conducted within twenty four hours of death.
24
. AIR 1997 SC 610 : (1997) 1 SCC 416; See also, Court on its own Motion v. State, ILR (2010)
6
Del 193.
25
. AIR 1997 SC 610, p. 628; See also, Secretary, Home Department v. Damayanthi, (2011) 4
CTC 746; S. Anand v. State of Tamil Nadu, (2012) 5 Mad LJ 772.
26
. AIR 1993 SC 1960, p. 1973 : (1993) 2 SCC 746.
27
. See, pp. 204 to 207, post.
28
. AIR 2000 SC 2083 pp. 2090, 2091 : (2000) 5 SCC 712. This case was followed by the Punjab
and Haryana High Court in holding that when on a false report lodged by a food inspector the
plaintiff was prosecuted and had to remain in jail for 7 days, the state was vicariously liable for the
tort of malicious prosecution along with the food inspector : AIR 2004 P&H 113, p. 115 (para 11).
29
. AIR 1995 SC 922 : (1995) 3 SCC 42.
vigour of a worker while in service or post retirement is a fundamental right under
Article 21”30 and directions were issued for examination of workers engaged in
asbestos industry and for payment of compensation of Rs. 1 lakh to each worker
found suffering from occupational health hazards. After referring to the case of
Nilabati Behera, K. RAMASWAMY J. observed: “It is, therefore, settled law that in
public law claim for compensation is a remedy available under Article 32 or 226 for
the enforcement and protection of fundamental and human rights. The defence of
sovereign immunity is inapplicable and alien to the concept of guarantee of
fundamental rights. There is no question of defence being available for constitutional
remedy. It is a practical and inexpensive mode of redress available for the
contravention made by the State, its servants, its instrumentalities, a company or a
person in the purported exercise of their powers and enforcement of the rights
claimed either under the statutes or licence issued under the statute or for the
enforcement of any right or duty under the Constitution or the law.”31
In Nalinikant Sinha v. State of Bihar,32 Sinha a senior employee was not considered
for promotion and a junior was promoted. The Government later realised the mistake
and Sinha was given notional promotion from the date the junior was promoted but
30
. AIR 1995 SC 922, p. 940.
31
. AIR 1995 SC 922, p. 941. This case apparently extends the protection under Article 32 to
cover every company and every person. To this extent it is of doubtful validity, for in two earlier
constitution bench decisions, viz. P.D. Shamdasani v. Central Bank of India, AIR 1952 SC 59 :
1952 SCR 391 and Smt. Vidya Verma v. Dr. Shiv Narain Verma, AIR 1956 SC 108 : (1955) 2 SCR
283 it was held that the fundamental right under Article 21 is available only against the State and its
instrumentalities and not against private persons, and the remedy under Article 32 cannot be
invoked against private individuals for violation of Article 21. Further, in M.C. Mehta v. Union of
India, AIR 1987 SC 965: (1987) 1 SCC 395, a Constitution Bench of the Supreme Court declined to
decide whether a private corporation was ‘state’ within Article 12 and therefore subject to the
discipline of Article 21 and for this reason no relief was granted against the corporation under
Article 32. The entire judgment proceeds on the basis that Article 21 is not available against private
persons and corporations not coming within the definition of state under Article 12. The same view
had been expressed in ADM, Jabalpur v. V.S. Shukla, AIR 1976 SC 1207, p. 1233 (para 80) and p.
1361 (para 521) : (1976) 2 SCC 521.
In Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC 1446 : (1996) 2
SCALE 44, pp. 72, 73, directions were issued against the Central Government to exercise its
statutory powers under sections 3 and 5 of the Environment (Protection) Act, 1986, to take remedial
measures to restore the soil, water sources and the environment in general of the affected areas and
to recover cost of the same from Polluting industries. The Rajasthan Pollution Control Board was
directed to enforce the closure of the industries till such time as they did not comply with the
directions and obtain requisite permissions and consents of the relevant authorities. As regards
damages to the villagers of the affected areas, the Court observed that it was open to them or to any
(Footnote No. Contd.)
organisation on their behalf to institute suits in appropriate civil court. This case thus proceeds on
the lines of the Mehta case and does not extend Articles 21 and 32 for awarding damages against
private companies and industries.
In M.C. Mehta v. Kamalnath, AIR 2000 SC 1997 : (2000) 7 JT 19 : (2000) 6 SCC 213, the court in a
petition under Article 32 set aside a lease of ecologically fragile land granted by the Himachal Pradesh
Government to Kamalnath and directed the Govt. to take over the area and restore it to its original
natural condition and to recover the cost of restitution as compensation from Kamalnath. This case is
also on the lines as the case of Indian Council for Enviro Legal Action (supra). The real violation of
Article 21 in this case was by the state in granting the lease under which Kamalnath acted and his acts
damaging the environment were thus done under the authority of the state. After cause was shown
exemplary damages of Rs. 10 lakhs were imposed (AIR 2002 SC 1515) by a two judge bench. This
case is of doubtful authority as it ignores the three judge bench case of common cause a registered
Society v. Union of India, AIR 1999 SC 2979 discussed at pp. 55, 56.
In Lata Wadhwa v. State of Bihar, AIR 2001 SC 3218 : (2001) 8 SCC 197 compensation was
allowed under Article 32 against the Tata Iron and Steel Company and in M.S. Grewal v.
Deepchand Sood, AIR 2001 SC 3660 : (2001) 8 SCC 151 in a petition under Article 226
compensation against a Public School was allowed under the Fatal Accidents Act. But in both these
cases objections regarding the tenability of petitions though raised were not pressed.
There is yet no constitution bench decision departing from the earlier constitution bench decisions
which restricted the availability of Article 21 against the state and its instrumentalities only.
32
. Nalini Kant Sinha v. State of Bihar, AIR 1993 SC 1358 : 1993 Supp (4) SCC 748.
was denied difference of salary on the ground that the rules did not permit the award
of difference as Sinha had not worked on the post of promotion before his actual
promotion. In a claim by Sinha for difference in salary and compensation for mental
anguish and suffering the Supreme Court negatived the claim for mental anguish and
suffering holding that it was not a legal claim allowable in law, 33 but allowed the
claim for difference in salary with interest “having regard to the facts and justice of
the case and without this decision constituting a precedent”.34
In two public interest petitions under Article 32 of the Constitution two excentral
ministers who had arbitrarily allotted petrol pumps and shops/stalls from
discretionary quota by mala fide exercise of their power were ordered to pay
damages to the Government to the tune of 50 lacs in one case and 60 lacs in the other
case.35 The two ministers were found guilty of the tort of misfeasance in public office
and liable to pay exemplary damages. The court relied upon Nilabati Behera’s case36
for the proposition that damages can be awarded under Article 32 of the Constitution.
With reference to these cases the following submission was made in the 23rd edition
of this book37 : “The fundamental rights in Part III of the Constitution are against the
State as defined in Article 12 and damages under Article 32 in enforcing fundamental
rights can be awarded against the State. But the State has no fundamental right which
can be enforced by award of damages to the State under Article 32. Further, Article
32 cannot be used for enforcing a liability in tort which is entirely different from a
liability arising from violation of a fundamental right and this aspect was highlighted
in Nilabati Behera’s case. It is submitted that in these two cases 38 Nilabati Behera’s
case was wrongly applied and damages in these cases could not have been awarded
in Article 32 petitions.”
A review petition decided by a bench of three judges in one of the two
aforementioned cases, which related to allotment of petrol pumps, justifies the above
submission to a large extent. The court agreed that the orders of allotment were
wholly arbitrary but it set aside the award of damages holding that the tort of
misfeasance in public office was not established and that the State could not be
awarded compensation in a petition under Article 32 for violation of fundamental
right of a citizen by its officers. The question relating to misfeasance of public office
arising in this case has been discussed elsewhere. 39 On the question of State’s right to
be compensated under Article 32 the court held: “The State itself cannot claim the
right of being compensated in damages against its officers on the ground that they
had contravened or violated the fundamental right of a citizen the whole thing has to
be examined in the context of Article 32 of the Constitution under which relief to a
person or citizen can be granted only against the Union of India or the State or its
instrumentalities, but the State cannot legally claim that since one of its ministers or
officers had violated the fundamental right of a citizen or had acted arbitrarily, it
should be compensated by awarding exemplary damages against that officer or
minister.”40 The court fully accepted the judgment and the principles laid down in
33
. Nalini Kant Sinha v. State of Bihar, AIR 1993 SC 1358, p. 1360.
34
. Nalini Kant Sinha v. State of Bihar, AIR 1993 SC 1358, p. 1359. There may, however, be
circumstances such as delay or large SCALE revision of seniority to disentitle back wages of the
higher post and the court may grant only notional promotion, seniority and pay fixation of the
higher post on that basis; see, Paluru Ramkrishnaiah v. Union of India, AIR 1990 SC 166, p. 175 :
(1989) 2 SCC 541; Telecommunication Engineering Service Association v. Union of India, 1994
Supp (2) SCC 22 : JT 1994 (7) SC 58, pp. 60, 61.
35
. A Common Cause a Registered Society v. Union of India, AIR 1996 SC 3538 : 1996 (7)
SCALE 156, (1996) 8 SCALE 127 : AIR 1997 SC 1886; Shivasagar Tiwari v. Union of India,
(1996) 7 SCALE 643; (1996) 8 SCALE 338 : AIR 1997 SC 1483. The facts of these cases are
discussed under the head Misfeasance in public office.
36
. AIR 1993 SC 1960, pp. 1966, 1969 : (1993) 2 SCC 746.
37
. 23rd edition, pp. 49, 50.
38
. See cases in footnote 54.
39
. See pp. 351, 352, post.
Nilabati Behera case. Indeed the court after quoting the passage extracted above 41
from the judgment of DR. ANAND J. in that case observed that it was “a classic
exposition of the realm of ‘public law’”. 42 The case of Nilabati Behera and the Privy
Council case of Maharaj v. Attorney General, which it approvingly followed clearly
lays down that the violation of a fundamental right gives rise to a strict liability of the
State in public law which is not a vicarious liability in tort. Damages under Article 32
or 226 for violation of a fundamental right are allowed against the State and not
against the officer whose action resulted in violation of the citizen’s fundamental
right, though the State can in suitable cases indemnify itself by recovering the loss
from the delinquent officer by taking appropriate proceedings against him. The court
was, therefore, right in observing in the judgment in disposing of the review petition
that award of damages to the Government in a petition under Article 32 will not be
permissible also for the reason that it would amount to directing the Government to pay
damages to itself.43 Whether it be a case of custodial death or wrongful detention or
medical negligence, the foundation of a petition under Article 32 is violation of the
fundamental right to life under Article 21 by the State and not the tort committed by its
officers. The court also held that exemplary damages cannot be allowed in all cases.44
The review petition in the other case also came up later before another three judge
bench of the Supreme Court. They quashed the award of damages on the ground that
the minister was old and ailing and it would be gross hardship to continue that part of
the order.45 They, however, doubted the correctness of the decision of the three judge
bench in the earlier review case and observed that its correctness can be appropriately
considered by a constitution bench in some other case. The legal position thus is that
the decision of the three judge bench in the case of common cause46 still remains the
law declared under Article 141.
The distinction between a tort committed by the officers for which the State may
be vicariously liable and the primary and strict liability of the State for the public law
wrong of violation of a fundamental right has sometimes not been maintained and
cases of public law wrongs redressed under the public law remedies by applications
under Article 32 or 226 have at times been, it is submitted inaccurately, referred to as
cases of tort. In Chairman Railway Board v. Mrs. Chandrima Das 47 where a
Bangladeshi woman was gang raped by employees of the Indian Railway, the court
rightly held that it was a case of violation of the fundamental right of the Bangladeshi
woman under Article 21, which applies also to noncitizens and the High Court was
right in allowing compensation of Rs. 10 lakhs against the Railway in a public
interest petition under Article 226 as the “state was under a constitutional liability to
pay compensation to her.”48 But in the course of discussion some earlier cases
relating to violation of fundamental right awarding compensation under Article 32 or
226 have been described as cases “in the realm of tort” 49 and there is also some
reference to vicarious liability of the State. 50 As submitted earlier, the liability
enforced under Article 32 or 226 for violation of a fundamental right is the primary
40
. Common Cause a Registered Society v. Union of India, AIR 1999 SC 2979, p. 3020 : (1999) 6 SCC
667.
41
. See, text and footnote 39, p. 51.
42
. Common Cause a Registered Society v. Union of India, AIR 1999 SC 2979, p. 2997 : (1999) 6 SCC
667.
43
. Common Cause a Registered Society v. Union of India, AIR 1999 SC 2979, p. 3020.
44
. See, p. 205, post.
45
. Sheila Kaur v. Shiv Sagar Tiwari, AIR 2002 SC 2868 : (2002) 10 SCC 667.
46
. Common cause a registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667;
See also, Court on its own Motion v. State of Himachal Pradesh, AIR 2010 (NOC) 866 (H.P.).
47
. AIR 2000 SC 988 : (2000) 2 SCC 465; Smt. Meinam Ongbi Bina Devi v. State of Manipur AIR
2015(NOC 644) 241.
48
. AIR 2000 SC 988, p. 999 (para 38).
49
. AIR 2000 SC 988, p. 993, 994 (paras 9 & 10).
50
. AIR 2000 SC 988, p. 1000 (para 43).
and strict liability of the State and not its vicarious liability for the tort committed by
its officers.51
In Jay Laxmi Salt Works (P.) Ltd. v. The State of Gujarat,52 damage to the plaintiff
was caused by over flow of water because of a reclamation bundh erected by the
State for reclamation of vast area of land from saltish water of sea. It was found that
the act of planning and construction of the bundh was done in a negligent manner
which resulted in damage to the plaintiff. But the suit was held to be barred by the
High Court under Article 36 of the Limitation Act, 1908. In appeal before the
Supreme Court it was held that this was not purely a case of negligence which would
be covered by the terms malfeasance, misfeasance and nonfeasance used in Article
36 but also failure to discharge a public law duty and will be governed by Article 120
of the Limitation Act. The court did not refer to any provision of the Constitution or
elaborate the concept of public law duty. In a welfare state all acts of the State are
directed in public interest for welfare of the people. But can it be said that mistake or
negligence in performance of every act by the Government would be violation of a
public law duty liable to be redressed in an action for damages.
Although the cases of Nilabati Behera and D.K. Basu discussed above at pages 53
to 55, which laid the basis for the concept of public law wrong, related to violation of
Article 21, the observations in them are ingeneral that violation of fundamental
rights will be public law wrong redressable under Article 226 and 32. A three judge
bench of the Supreme Court, however, in Hindustan Papers Corporation v. Ananta
Bhattacharjee53 has held that “the public law remedy for the purpose of grant of
compensation can be resorted to only when the fundamental right of a citizen under
Article 21 is violated and not otherwise”. The court further held that “it is not every
violation of the provisions of the Constitution or a statute which would enable the
court to direct grant of compensation.”
Having regard to the very wide area which is covered by Article 21; which is made
wider and wider as a result of its extension by ‘judicial extrapolation’, 54 coupled with
the fact that the Constitution does not expressly provide for grant of damages either
under Article 32 or 226 it cannot be held that any breach of any right under
Article 21 will sound in damages in public law. The law on this point is in a
developing stage. If in a new situation not covered by an authority of the Supreme
Court a question of this nature arises it may be seen as to how far the new situation
resembles to those situations in which damages have been allowed in public law and
in tort law and whether it would be just and reasonable to award damages in the new
situation. Instead of laying down a broad general principle to cover all situations
where damages can be allowed, it may be better to develop the law incrementally by
taking analogy from the decided cases both under public law and private law of torts.
This is the method which is now adopted in deciding cases of negligence in tort law
which are not covered by authority. Further, extension of fundamental rights under
Articles 21 and 32 against private persons, apart from being of doubtful validity, 55
may open a Pandora’s box and flood the Supreme Court with petitions seeking
damages. Rights to life and personal liberty against private persons are already
covered by common law and statute law and private law remedies are available for
violations of these rights. The courts must also be astute to guard against the trend
that the blame for every misfortune must be laid at the doorstep of the State under
Article 21 lest every wrong or offence against the person or property becomes
51
. See text and footnotes 37, (p. 51), 39, (p. 51), 43, (p. 53), 61, (p. 56).
52
. (1994) 4 SCC 1 : JT 1994 (3) SC 492 : 1994 ACJ 902. Followed in a case of negligence of
municipal corporation in failing to discharge duty of care towards persons swimming in a
swimming pool maintained by the corporation resulting in death of a person by drowning : Popatlal
Gokaldas Shah v. Ahmedabad Municipal Corporation, AIR 2003 Guj 44 : (2004) 9 SCALE 46.
53
. (2004) 6 SCC 213, p. 216.
54
. See, G.P. SINGH, Principles of Statutory Interpretation, 12th edition, p. 267.
55
. See, footnote 60, p. 54.
redressable as a public law wrong against the State on the ground that it was not
sufficiently vigilant in protecting the person or property of the victim. It may be
worthwhile that the Supreme Court lays down the parameters as to when the State
can be made liable, if at all, for public law wrong as distinguished from the tort of
negligence, in cases where the wrong is done not by the State or its officers but by a
third person who was not acting as agent of or in collusion with the State or its
officers.56 It is submitted that a distinction may also be drawn between strict liability
of the State to pay damages for violation of fundamental right under Article 21 and
its duty as a welfare state to provide relief to its needy citizens. The Supreme Court
in Chairman Grid Corporation of Orissa Ltd. v. Shrimati Sukmani Das 57 has, it is
submitted, rightly deprecated the tendency to grant huge sums as damages under
Article 226 in cases where the facts are disputed and there has been no trial of the
issues involved or where there is a minor infraction of Public Duty. 58 However,
Sukamani Das (supra) cannot be understood as laying down the law that in every
tortious claim, recourse must be had to suits. When negligence and infringement of
Article 21 is there on the face of it, there will not be any bar to proceed under Article
226 of the Constitution.59
The Madras High Court60 in a public interest petition under Article 226 of the
Constitution held that damages for injury to property of citizens in riot, when there
was virtual breakdown of law and order, can be claimed against the State Government.
The High Court in that case allowed Rs. 33.39 lakhs as compensation against the State
to 39 Sikh families as it had failed to protect the properties of these families in the riots
let loose in Coimbatore in the wake of the former Prime Minister, Indira Gandhi’s
assassination on October 31, 1984. In view of the High Court, deprivation of property
resulted in deprivation of means of livelihood violating Articles 21 and 300A of the
Constitution. A similar petition filed in the Delhi High Court 61 was also allowed on
similar reasoning. A petition filed in the Supreme Court for obtaining similar benefits
to other Sikh riot victims in the entire country was remanded by the Supreme Court to
the High Courts of Delhi,62 Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh,
Patna, Madhya Pradesh, Allahabad and Bombay for appropriate action without
expressing any opinion on merits of the petition. The Kerala High Court63 allowed
damages to a petitioner under Article 226 whose hotel was ransacked by a mob on the
ground that inaction by the police to render protection to the petitioner’s hotel violated
his fundamental right under Article 19(1)g of the Constitution. In all these cases the
deprivation of life or property was not directly by the State or its officers but by third
parties whose acts were facilitated because of the negligence or inaction of the officers
of the State. As a criticism of these cases it may be said that when the third parties were
not acting as agents of or in collusion with the State or its officers, there was no
deprivation by the State or its officers of any fundamental right to life or right to
property and the State could be made liable, if at all, only in private law for the tort of
negligence64 unless it could be said that it was reasonably foreseeable in the
circumstances that a riot like situation may emerge and so the State was under a
56
. See text and footnotes 79 to 83, infra.
57
. AIR 1999 SC 3412 : (1999) 7 SCC 298; A.K. Singh v. Uttarakhand Jan Morcha, AIR 1999 SC
2193 p. 2195 : (1999) 4 SCC 476, Tamil Nadu Electricity Board v. Sumathi, AIR 2000 SC 1603 :
(2000) 4 SCC 543; N.Ulingappa v. APCPDCL, AIR 2012 AP 149.
58
. Rabindra Nath Ghosal v. University of Calcutta, AIR 2002 SC 3560 : (2002) 7 SCC 478.
59
. T. Bimbla v. Cuttack Municipal Corporation & Others, 2015 ACJ 2585.
60
. R. Gandhi v. Union of India, AIR 1989 Mad 205. For another case of communal riot where the
State was held liable to compensate the victims, see, M/s. Inder Puri General Store v. Union of India,
AIR 1992 J & K 11 (Article 21 applied). But, see, Nathulal Jain v. State of Rajasthan, AIR 1993 Raj
149 (A person not suffering any injury cannot maintain a public interest petition for riot victims).
61
. Bhajan Kaur v. Delhi Administration, 1996 AIHC 5644 (Delhi).
62
. S.S. Ahluwalia v. Union of India, AIR 2001 SC 1309 : (2001) 4 SCC 452.
63
. P. Gangadharan Pillai v. State of Kerala, AIR 1996 Ker 71.
64
. See text and footnote 75, p. 58.
primary duty for making adequate arrangements of its law enforcement machinery for
protection of life and property of its citizens which it failed to perform. It was,
however, rightly held that Kasturilal’s case has no application when there is
infringement of Article 21 of the Constitution.
Guidance in this respect can be taken from Strasbourg jurisprudence as developed
in interpreting right to life in Article 2 of the European Convention which is briefly
expressed: ‘Everyone’s right to life shall be protected by law’. The article as
interpreted also involves a positive obligation of the State to take preventive
operational measures “when the authorities know or ought to have known at the time
the existence of a real and immediate risk to the life of an identified individual or
individuals from the criminal acts of a third party”. It is sufficient for the party
complaining of the violation of this obligation “to show that the authorities did not do
all that could be reasonably expected of them to avoid a real and immediate risk to
life of which they had or ought to have had knowledge. This is a question to be
answered in the light of all the circumstances of the case”.65
Following the case of Rudul Shah, the Himachal Pradesh High Court66 allowed a
petition against the State for award of compensation under Article 226 of the
Constitution by dependants of two persons who died during surgical operation in a
Government hospital because of negligence of the hospital staff in that they were
administered nitrous oxide in place of oxygen. As the hospital staff were employees
of the State, the High Court, it is submitted rightly treated it to be a case of
deprivation of life violating the fundamental right under Article 21 of the
Constitution and not purely a case of negligence. The Orissa High Court in
Dharnidhar Panda v. State of Orissa 67 held the State vicariously liable in a writ
petition when as a result of collapse of a portion of a school building two children
died. The responsibility for maintenance of school building lay on the Village
Education Committee which acted as agent of the State Government. In Y.
Krishnappa v. The State,68 a learned Single Judge of the Madras High Court allowed
Rs. 20,000 as compensation under Article 21 for delay in investigation without
quashing the investigation for mental agony and anguish of the accused. And in C.
Chinnathambi v. State of Tamil Nadu,69 another learned judge of the Madras High
Court allowed Rs. 1,50,000/ under Article 226 of the Constitution to the dependants
of each of the two children who died as a result of collapse of a water tank in a
government school. In this case also Article 21 was applied. The Madras High Court
upheld payment of compensation in a case where a student drowned in the swimming
pool maintained by the State which had no security guard. 70 The Delhi High Court
granted compensation to a widow, whose husband died as a result of bomb blast that
took place at a cinema hall. State was held liable to compensate the family of
the deceased. The Orissa High Court granted compensation on account of the
65
. Osman v. U.K., (1998) 5 BHRC 293 (paras 115, 116) referred in Re Officer L, (2007) 4 All ER
965 para 19 pp. 975, 976 (H.L.); Van Colle v. Chief Constable of Hertfordshire Police, (2008) 3 All
ER 977 paras 29 to 32 (H.L.); Re E (a child), (2009) 1 All ER 487 paras 45 to 48 (H.L.). (This case
also
discusses the sufficiency of the measures adopted by the authorities to prevent a riot like situation.
The case is in the context of Article 3 of the European Convention which provides that no one shall
be subjected to torture or to inhuman or degrading treatment or punishment which corresponds to
Article 7 of the International Covenant on Civil and Political Rights enforced in India by the
Protection of Human Rights Act, 1993).
66
. Smt. Kalawati v. State of Himachal Pradesh, AIR 1989 HP 5.
67
. AIR 2005 Ori 36 : 2006 ACJ 487.
68
. (1993) Cr. LJ 3646 (Mad).
69
. AIR 2001 Mad 35.
70
. G.Ravindran v. State of Tamil Nadu (WP (MD) No. 10045/2009) Decided 15.04.2015 (SB)
V.M.Velumani J.
death of a young girl who was raped and murdered within the school premises, by a
school teacher.71
(iv) Limitations of Sovereign Immunity
The sovereign functions within which the immunity of the State survives in an
ordinary tort action are also vague. But there can be no doubt in respect of certain
matters. Trading and commercial activities of the State, for example running of
railways,1 are outside the scope of sovereign functions. This in fact was the decision
in the Peninsular and Oriental Steam Navigation Company’s case,2 which was
approved in Kasturilal’s case.3 Again welfare activities like famine relief work 4 or
routine Governmental activity like maintenance of vehicles for use of officials, 5 or
71
. Biranchi Narayan Sahu v. State of Orissa, (2011) 105 AIC 680
1
. Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988, p. 1000 : (2000) 2 SCC 465.
2
. 5 Bom HCR App 1.
3
. AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR 955.
4
. Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890 : (1974) 1 SCC 690 : 1974 ACJ 296.
5
. State of Rajasthan v. Vidyawati, AIR 1962 SC 933 : (1963) SCJ 307 : (1962) 2 SCA 362. See,
text and footnote 3, p. 45.
any service or facility to the consumer covered by the Consumer Protection Act
19866 or running of a hospital 7 do not fall within the area of immunity which is
limited to the traditional sovereign functions. In Shyamsunder v. State of Rajasthan, 8
a truck belonging to the Public Works Department was engaged in famine relief work
when an accident happened because of the negligence of the driver. In holding that
the State was liable the Supreme Court observed: “It is not possible to say that
famine relief work is a sovereign function of the State as it has been traditionally
under stood.” The question as to what are traditional sovereign functions of the State
was considered by the Supreme Court in another context in State of Bombay v.
Hospital Mazdoor Sabha9 and Nagpur Corporation v. Its Employees,10 and in both
these cases the court referred with approval to Lord Watson’s observation on this
point in Coomber v. Justice of Berks.11 These cases show that traditional sovereign
functions are the making of laws, the administration of justice, the maintenance of
order, the repression of crime, carrying on of war, the making of treaties of peace and
other consequential functions.12 Whether this list be wide or narrow it is at least clear
that the socioeconomic and welfare activities undertaken by a modern State are not
covered by the traditional sovereign functions.13 Further, although carrying on of war
is a traditional sovereign function it will not be correct to say that in all cases when a
tort is committed by a member of the defence services in the course of employment
the State would succeed in pleading its immunity. This follows from the ruling of the
Supreme Court in Pushpa Thakur v. Union of India.14 In that case the facts as found
6
. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, p. 796 : (1994) 1 SCC 243.
See also Ethiopian Airlines v. Ganesh Narain Saboo (2011) 8 SCC 539, para 81 : AIR 2011 SC 3495;
Indopol Flour Mills v. State of U.P. (2011) 4 All LJ (NOC 508) 142.
7
. Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377 : (1996) 2 SCALE
328,
p. 334; State of Haryana v. Smt. Santra, AIR 2000 SC 1888 : (2000) 5 SCC 182z (Failure of
sterilisation operation in government hospital); The Joint Director of Health Services v. Sahai, AIR
2000 Mad 305; Dr. M.K. Gourikutty v. M.K. Raghavan, 2001 Ker 398.
8
. AIR 1974 SC 890 : (1974) 1 SCC 690, (696) : 1974 ACJ 296.
9
. AIR 1960 SC 610 : 1960 SCJ 679 : (1960) 2 SCA 243.
10
. AIR 1960 SC 675 : (1960) 1 SCA 596 : (1960) 2 SCR 942.
11
. (1883) 9 AC 61.
12
. Ad hoc Committee, The Indian Insurance Companies Association Pool v. Radhabai Babulal,
1976 ACJ 362, at p. 366 : AIR 1976 MP 164 : 1976 Jab LJ 394 (Medical relief work undertaken by
the State through a primary health centre is not a traditional sovereign function), see further,
Commandant of 74 Bn. B.S.F. v. Pankajini Kundu, 1984 ACJ 660 (at p. 663) : AIR 1984 Cal 405 :
(1985) 1 TAC 126, State of U.P. v. Hindustan Lever ltd., AIR 1972 All 486 : 1972 All LJ 501; N.
Nagendra Rao & Co. v. The State of Andhra Pradesh, AIR 1994 SC 2663 : JT (1994) 5 SC 572, p.
598 : (1994) 6 SCC 205; Chief Conservator of Forests v. Jagannath Maruti Kondhare, AIR 1996
SC 2898; Agriculture Produce Market Committee v. Ashok Harikuni, AIR 2000 SC 3116, p. 3125 :
(2000) 8 SCC 61 (Defence of the country, raising armed forces, making peace or war, foreign
affairs, power to acquire and retain territory).
13
. In Secretary of State v. Cockcraft, AIR 1915 Mad 993 : 27 IC 723 : ILR 39 Mad 352; and
Krishnamurthy v. State of Andhra Pradesh, (1960) 2 And WR 502 : AIR 1961 AP 283 : 1960 Andh LT
1053, it was held that maintenance of a highway was a sovereign function and so the Government was
not liable for negligence of its servants in repairing or maintaining a highway or a culvert. These
cases require reconsideration as maintenance of a highway cannot be called a traditional sovereign
function. See further title 4A. Highway Authority, pp. 38, 39, supra.
14
. (1984) ACJ 559 : (1984) 2 TAC 308 : (1985) 1 ACC 96 : AIR 1986 SC 1199 overruling
(1984) ACJ 401 (Punjab and Haryana) : (1964) 86 Pun LR 143. The Full Bench decision of the
Punjab and Haryana High Court in Bakshi Amrik Singh v. The Union of India, (1974) ACJ 105 :
ILR (1973) 1 Punj 163, which was the basis for deciding 1984 ACJ 401 must also be taken to be
overruled. See further, the following cases where immunity was rightly negatived : Union of India
v. Savita Sharma, AIR 1979 J &K 6 : 1979 ACJ 1 : 1979 TAC 54; Satya Wati Devi v. Union of
India, AIR 1967 Delhi 98 : (1968) 69 Pun LR (D) 125 : 1968 ACJ 119; Nandram Heeralal v. Union
of India, AIR 1978 MP 209 : 1978 ACJ 215 : 1978 TAC 289; Iqbal Kaur v. Chief of Army Staff,
AIR 1978 All 417 : 1978 All LJ 654 : 1978 All WC 559; Union of India v. Smt. Jatto, AIR 1962
Punjab 315 :
by the High Court15 were that on 28th August 1972, a military truck coming from the
side of Delhi, due to negligence of the driver, went on the wrong side of the road and
hit a culvert. Four persons including the appellant who were sitting on the culvert
sustained severe injuries. The truck in question was part of the First Armed Division.
This Division had moved to Ferozepur during the 1971 IndoPak War. When the war
was over, this Division was ordered to move back to its permanent location at Jhansi
and it was during this movement that the truck met with an accident. At that time, the
truck was carrying rations and also some sepoys. On these facts the High Court held 16
that the accident occurred during the exercise of sovereign functions of the State and
consequently the Union of India could not be held liable. The Supreme Court,
overruling the High Court, in a very brief order said: “We are of the view that on the
facts and circumstances of the case the principle of sovereign immunity of the State
for the acts of its servants has no application and the High Court was in error in
rejecting the claim of the appellant for compensation on that ground.” 17 It will be
seen that the truck involved in the accident was engaged in carrying ration and
sepoys within the country during peace time in the course of movement of troops
after the hostilities were over and this is a routine duty not directly connected with
carrying on of war, the traditional sovereign function. It was probably for this reason
that the Supreme Court negatived the plea of State immunity. The decision of the
Supreme Court is in line with the view taken by the High Court of Australia that
there are no sufficient policy reasons to deny the general applicability of the law of
negligence to routine military duties in time of peace. 18 On the same reasoning
although maintenance of order and repression of crime (which will include power to
arrest, search and seize as held in Kasturilal’s case)19 are traditional sovereign
functions, torts committed by security personnel in the course of routine duties will
not qualify for giving protection to the State on the ground of State immunity. 20 But
when the act complained of is directly connected with the maintenance of order, the
State may succeed in claiming immunity. For example, where the police while
regulating a procession made lathi charge and caused damage to the property of the
plaintiff, it was held that the State was not liable. 21 Similarly, when some police
personnel assaulted members of a mob for dispersing it when there was an
apprehension of an attack on the office of the S.D.O. by the mob, the State was held
to be not liable.22 However, in State of Madhya Pradesh v. Shantibai, two women
who were standing on the roof of their house were injured when police fired in the air
to control a mob indulging in violence after lathicharge and teargas had failed to be
effective, the High Court allowed compensation and negatived the defence of
sovereign immunity. The women were innocent victims and they were hit by the
(1962) 64 Pun LR 318 : ILR (1962) 1 Punj 708; Union of India v. Sugrabai, AIR 1969 Bom 13 :
ILR (1968) Bom 998 : 70 Bom LR 212; Union of India v. Bhagwati Prasad Misra, AIR 1957 MP
159 : 1957 Jab LJ 765 : ILR (1957) MP 43; Rooplal v. Union of India, AIR 1972 J & K 22; Union
of India v. Abdul Rehman, AIR 1981 J & K 60 : 1982 Srinagar LJ 17 : 1981 ACJ 348 : 1981 Kash
LJ 279.
15
. Union of India v. Pushpa Thakur, (1984) ACJ 401 (p. 403) : (1984) 86 Pun LR 143.
16
. Union of India v. Pushpa Thakur, (1984) ACJ 401, p. 404 : (1984) 86 Pun LR 143.
17
. (1984) ACJ 559 (SC) : (1984) 2 TAC 308 : (1985) 1 ACC 76. Followed in Usha Agarwal v.
Union of India, 1985 ACJ 834 : AIR 1985 (P&H) 279 : 1985 (2) 88 Pun LR 197.
18
. Groves v. Commonwealth, (1982) 41 ALR 193.
19
. AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR 955 : (1965) 1 SCR 375.
20
. For example, see, Union of India v. Abdul Rehman, AIR 1981 J & K 60 : 1982 Srinagar LJ 17 :
(1981) ACJ 348 : 1981 Kash LJ 279; Commandant of 74 Bn. B.S.F. v. Pankajini Kundu, (1984)
ACJ 660 (Calcutta) : AIR 1984 Cal 405 : (1985) 1 TAC 126.
21
. State of Madhya Pradesh v. Chirojilal, AIR 1981 MP 65 : 1981 Jab LJ 351; The reasoning is
that the function of the State to regulate processions is delegated to the police by section 30 of the
Police Act and the function to maintain Law and Order, including quelling of riot, is delegated to
the authorities specified by section 144, Cr.P.C. These functions cannot be performed by private
individuals. They are the powers exercisable by the State or its delegates only and by their very
nature these functions are to be regarded as ‘Sovereign functions’ of the State.
22
. State of Orissa v. Padmalochan, AIR 1975 Ori. 41 : ILR (1974) Cut 103.
bullets fired by the police though “unwittingly”. 23 But even in cases where use of
police lathicharge or firing is justified, the State, generally, does not intend to deny
compensation to the victims or to the dependents in case of death. It is on this basis
that the Supreme Court allowed payment of Rs. 20,000 in case of death and Rs. 5,000
for personal injury.24
It was stated in the Peninsular and Oriental Steam Navigation Company’s case that
sovereign powers are those powers “which cannot be lawfully exercised except by a
sovereign or by a private individual delegated by a sovereign to exercise them.” 25
This test is applied in some cases for deciding the question whether the tort was
committed in the protected field of sovereign immunity, but the test is not
satisfactory and cannot, at any rate, be applied to all cases. In India, no private
individual can carry on undertakings like the Railways but it does not follow that
these undertakings are carried on by the Government in the exercise of traditional
sovereign powers and the State shall not be liable for torts committed by servants of
these undertakings in the course of employment. These undertakings are in the nature
of commercial and public utility undertakings26 and as they do not fall within the
traditional sovereign functions they are outside the protected area. Further, no private
individual has the power to raise and maintain an army or a police force, but as
already seen,27 the law is not that all torts committed by an Army Officer or a Police
Officer in the course of employment fall within the area of State immunity. There has
to be a close nexus between the act complained of and one of the traditional
sovereign functions of the State such as carrying on of war, maintenance of order or
repression of crime before it can be said that the State will not be liable for torts
committed in the course of employment by a member of the Defence services or
police force.28
It must also be noticed that the State cannot succeed in pleading its immunity by
merely showing that the tort was committed by its servants in the course of discharge
of statutory functions. “The statutory functions must be referable to the traditional
concept of Government activity in which the exercise of the sovereign power was
involved”29 to enable the State to claim immunity. This was clearly laid down by the
Supreme Court in Kasturilal’s case.30 This legal position has now been strongly
affirmed by the Supreme Court in N. Nagendra Rao & Co. v. The State of Andhra
Pradesh.31 In this case the appellant carried a business in fertilisers and foodgrains.
Huge stock of fertilisers and foodgrains was seized from the appellant’s premises. In
proceedings taken under section 6A of the Essential Commodities Act, 1955, no
serious violation of any Control order was found and only nominal portion of the
stock seized was confiscated and the rest was ordered to be released. The appellant,
23
. AIR 2005 M.P. 66; See also, Smt. Harimaya Dayal v. Union of India & others, AIR 2010
(NOC) 561 (GAU); Jeetindera Singh v. State of H.P. AIR 2012 HP 61 : (2012) 113 AIC 332.
24
. AIR 1987 SC 355, p. 356 : (1987) 1 SCC 265.
25
. (186869) 5 Bom HCR, Appendix 1, p. 1 at p. 14.
26
. Govt. of India v. Jeevraj Alva, AIR 1970 Mysore 13 : 1970 ACJ 221 : (1969) 1 Mys LJ 244.
27
. Text and footnotes 9 to 16, pp. 61 & 62, supra.
28
. Text and footnotes 9 to 16, pp. 61 & 62, supra.
29
. State of U.P. v. Hindustan Lever Ltd., AIR 1972 All 486, (p. 491) : 1972 All LJ 501 (A deposit
made on behalf the plaintiffs in a Government subtreasury was not credited to their account as it
was embezzled by the treasurer and the accountant of the subtreasury. In a suit by the plaintiffs it
was held that even assuming that the treasurer and the accountant committed the wrong in the
course of discharge of statutory functions (under rules made by virtue of s. 151, Government of
India Act, 1935), the State was liable as running a subtreasury was in the nature of a banking
business and did not pertain to the traditional sovereign activity.)
30
. Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, p. 1946 : (1965) 2 Cri LJ 144 :
(1965) 1 SCWR 955 : “The question to ask is: was the tortious act committed by the public servant
in discharge of statutory functions which are referable to, and ultimately based on, the delegation of
the sovereign power of the State to such public servant.”; Followed in Ganesh Prasad v. Lucknow
Development Authority, (2012) 90 ALR (SUM 9) 5 : (2011) 89 ALR (SUM 64) 31).
31
. AIR 1994 SC 2663 : JT 1994 (5) SC 572 : (1994) 6 SCC 205.
when he went to take the delivery found that the stock had been spoilt both in
quantity and quality. The appellant, therefore, instead of taking delivery of the stock
sued for compensation against the State. The trial court found negligence on the part
of the officers and decreed the suit in part. The High Court did not interfere with the
finding of negligence but dismissed the suit relying upon Kasturilal. In the Supreme
Court, the appeal was heard by two judges who could not overrule Kasturilal (which
is a decision of a Constitutional Bench) but they pointed out in an elaborate
discussion that it was not correctly decided and that the doctrine of sovereign
immunity has no relevance in the present day context. Distinguishing Kasturilal the
Court, overruling the High Court, observed that maintenance of law and order may
be an inalienable sovereign function of the State in the traditional sense but power of
regulating and controlling essential commodities as conferred by the Essential
Commodities Act and the orders made thereunder did not pertain to that area and the
State cannot claim immunity if its officers are negligent in exercise of those powers. 32
Even in those cases where the State is protected from vicarious liability on the
doctrine of sovereign immunity, the public servant committing the tort is not
protected.33 It is also no defence for the public servant to say that the wrong was
committed in the course of discharging some statutory function or carrying out the
orders of superiors.34 Superior Officers are not liable on the basis of vicarious
responsibility for there is no relationship of master and servant between them and
their subordinate; but a superior officer is liable directly if the wrong committed by
the subordinate is expressly authorised by him. 35 Further, although no action lies for
doing that which is authorised by the legislature, if it be done without negligence, but
an action lies for doing that which the legislature has authorised if it be done
negligently.36 In cases where a statutory discretion is conferred, the person entrusted
with the discretion is not liable if the discretion is exercised with due care and there
is merely an error of judgment; but there would be liability if he “either unreasonably
failed to carry out his duty to consider the matter or reached a conclusion so
unreasonable as again to show failure to do his duty.”37
9. FOREIGN SOVEREIGNS
English courts have no jurisdiction over an independent foreign sovereign
personally and the properties of a foreign sovereign State unless they submit to the
jurisdiction of the Court.1 For this purpose all sovereigns are equal. The independent
sovereign of the smallest State stands on the same footing as the monarch of the
greatest. No Court can entertain an action against a foreign sovereign for anything
done, or omitted to be done, by him in his public capacity as representative of the
nation of which he is the head. 2 Mere residence in a foreign territory does not lead to
a waiver of immunity or submission to local Courts. 3 Even if such a sovereign is a
British subject, and has exercised his rights as such subject, he cannot be made to
account for acts of State done by him in his own territory, in virtue of his authority as
a sovereign.4 As a consequence of the absolute independence of every sovereign
32
. JT 1994 (5) SC 572 , p. 600.
33
. State of U.P. v. Tulsi Ram, AIR 1971 All 162 : 1970 All Cri R 429 : 1970 All WR (HC) 160.
34
. Venkappa v. Devamma, (1956) Mad 1381.
35
. Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93, p. 124.
36
. Geddis v. Proprietors of Bann Reservoir, (1873) 3 AC 430 (HL), pp. 455456 (L ORD
BLACKBURN) referred to in Home Office v. Dorset Yacht Co., (1970) 2 All ER 294 : (1970) AC 1004
(HL). Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: (1994) 1 SCC 243.
37
. Home Office v. Dorset Yacht Co., (1970) 2 All ER 294 : (1970) AC 1004 (HL) (LORD REID).
1
. Mighell v. Sultan of Johore, (1894) 1 QB 149; Duff Development Co. v. Kelantan Government,
(1924) AC 797; The Christina, (1938) AC 485; The Arantzazu Mendi, (1939) AC 256.
2
. De Habar v. The Queen of Portugal, (1851) 17 QB 171 Wadsworth v. Queen of Spain, 20
LJQB 488; Gladstone v. Ottoman Bank, (1863) 1 H & M 505.
3
. Mighel v. Sultan of Johore, (1894) 1 QB 149.
4
. Duke of Brunswick v. The King of Hanover (King), (1848) 2 HLC 1.
authority and of the international comity which induces every sovereign State to
respect the independence of every other sovereign State, each and every one declines
to exercise by means of its courts, any of its territorial jurisdiction over the person of
any sovereign or ambassador of any other State, or over the public property of any
State which is destined to its public use, or over the property of any ambassador,
though such sovereign, ambassador, or property, be within its territory, and therefore,
but for the common agreement, subject to its jurisdiction. 5 This sovereign immunity
may not be available upon termination of sovereign status, e.g., abdication.6 Where
the de jure sovereign of a foreign country (Emperor of Abyssinia) brought an action
to recover a sum of money from a company and the company proved that a claim in
respect of the money had been made by another foreign Sovereign State (King of
Italy), it was held that the court had no jurisdiction to decide the rights of the
plaintiff, having regard to the claim by the other foreign State.7
Unlike Great Britain, most countries did not accept the doctrine of absolute
immunity and they tended to distinguish between acts jure imperii and acts jure
gestionis.8 The absolute immunity doctrine was producing great injustice in the
changed conditions when sovereign States are more and more indulging in
commercial and trading activities. The English courts, therefore, felt the necessity of
taking more restricted view of sovereign immunity. The Privy Council in Philippine
Admiral (owners) v. Wallen Shipping (Hong Kong) Ltd.,9 abandoned the absolute
immunity theory and applied the restrictive theory in respect of actions in rem
observing that the trend of opinion in the world since the war has been increasingly
against the application of the doctrine of sovereign immunity to ordinary trading
transactions. The Court of Appeal10 under the leadership of LORD DENING applied the
restrictive theory also to actions in personam holding that there is no ground for
granting immunity if the dispute concerns commercial transactions of a foreign State.
Finally the House of Lords in The Congreso Del Partido11 approved the restrictive
theory requiring the court to analyse the nature of the obligation and breach in
question to decide whether it pertained to private law or was of “Governmental”
character. Parliament has also intervened by enacting the State Immunity Act, 1978
which applies to causes of action arising after November 21, 1978. The immunity
under the Act covers proceedings which relate to anything done in the exercise of
“sovereign authority”. Acts done under statutory authority are thus not protected. 12
Speaking generally trading transactions are not protected under the Act but what is
more important for our purposes is that immunity does not apply to: (a) an action or
omission in U.K. causing death or personal injury; and (b) obligations arising out of
the ownership, possession or use of property in U.K. But the Act does not apply to
‘proceedings relating to anything done by or in relation to the armed forces of a state
while present in the United Kingdom’. The immunity relating to armed forces
covered by this exception is decided in accordance with the common law relating to
State immunity.13 A member of the US Air Force sustained injury through treatment
by US medical personnel at a US base hospital in England and he brought a suit for
damages against the United States’ government in England. The suit was dismissed
on the ground of State immunity that the activities of the United States which gave
rise to the suit fell within the area of Jure imperii.14 Where the immunity applies, it
covers an official of the State in respect of acts performed by him in an official
5
. The Parlement Belge, (1880) 5 PD 197, 217.
6
. Munden v. Brunswick, (1847) 10 QB 656.
7
. Haile Selassie v. Cable and Wireless Ltd., (1938) 1 Ch 545.
8
. CHESHIRE, Private International Law, 6th edition, page 89, Footnote 2.
9
. (1976) 1 All ER 78 (PC).
10
. Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, (1977) 1 All ER 881, pp. 891,
892 : 1977 QB 529 : (1977) 2 WLR 356 (CA).
11
. (1983) AC 244 (HL); Holland v. Lampen Wolfe, (2000) 3 All ER 833, p. 844 (HL).
12
. Kuwait Airways Corp. v. Iraqi Airways Co., (1995) 3 All ER 694 : (1955) 1 WLR 1147 (HL).
13
. Holland v. Lampen Wolfe, (2000) 3 All ER 833, p. 844 : (2000) 1 WLR 1573 (HL).
capacity.15 The State immunity is unaffected by the European Convention for the
Protection of Human Rights and Fundamental Freedoms which is enforced in the
United Kingdom by the Human Rights Act, 1998 from 2nd October, 2000. 16 But the
Court of Appeal in another decision unanimously held that in a case where a
systematic torture was carried out in a State’s prison by its officials, the immunity
from civil proceedings for compensation for acts of torture will apply only to the
State and not to its officials.17
If an international organisation formed by an agreement of Sovereign States is
given a corporate status by the law of the United Kingdom, the organisation becomes
a distinct legal entity from its members who cannot be made liable for the debts of
the organisation.18 So if the organisation is by law also given legal immunity, the
result is that neither the organisation nor the member States can be sued.Error:
Reference source not found Agreements or treaties entered into by Sovereign States,
unless incorporated in law by statute, cannot be enforced in municipal courts either
by the member States or by a third party.19
In India, as provided in section 86 of the Code of Civil Procedure, a foreign State
cannot be sued except with the consent of the Central Government certified in
writing by a Secretary to that Government. A tenant of immovable property can,
however, sue without such consent the foreign State from whom he holds or claims
to hold the property. Consent to sue cannot be given unless it appears to the Central
Government that the foreign State: (a) has instituted a suit in the court against the
person desiring to sue it, or (b) by itself or another, trades within the local limits of
the jurisdiction of the court, or (c) is in possession of immovable property situate
within those limits and is to be sued with reference to such property or for money
charged thereon, or (d) has expressly or impliedly waived the privilege accorded to
it.20 The immunity under section 86 also covers foreign corporations which are State
owned and are like government departments even though they carry on commercial
or trading activities.21 Having regard to the modern trend of taking a restricted view
of State immunity, the Supreme Court has ruled that the consent to sue should
generally be granted if conditions mentioned in the section are satisfied. 22
10. AMBASSADORS
The law on the privileges and immunities of diplomatic representatives in the
United Kingdom is contained in the Diplomatic Privileges Act, 1964, which gives the
force of law to the relevant provisions of the Vienna Convention on Diplomatic
14
. Littrell v. United States of America, (1994) 4 All ER 203 : (1995) 1 WLR 82 : (1993) 137 SJ
L.B. 278 (CA).
15
. Holland v. Lampen Wolfe, (2000) 3 All ER 833, p. 843.
16
. Holland v. Lampen Wolfe, (2000) 3 All ER 833, pp. 847, 848.
17
. Jones v. Minister of Interior (Kingdom of Saudi Arabia), (2005) 2 WLR 808. For comments on
this case see (2005) 121 Law Quarterly Review, pp. 353359.
18
. Maclaine Watson & Co. Ltd. v. Department of Trade & Industry, (1989) 3 All ER 523 (HL).
19
. Maclaine Watson & Co. Ltd. v. Department of Trade & Industry, (1989) 3 All ER 523
(HL).Regarding United Nations, see A.G. Nissan, (1969) 1 All ER 629 (HL), p. 647. For reparation
of the injuries suffered in the service of United Nations, see, (1949) ICJR 174.
20
. Section 86, Code of Civil Procedure, 1908.
21
. Veb Deautfracht Seereederei Rostock (D.S.P. Lines) a Department of the German Democratic
Republic v. New Central Jute Mills Co. Ltd., AIR 1994 SC 516 : (1994) 1 SCC 282. See further,
Arab Republic of Egypt v. GamalEldin, (1996) 2 All ER 237 (Activity of organising medical relief
for its nationals is not commercial activity and is within state immunity).
22
. Harbhan Singh Dhalla v. Union of India, AIR 1987 SC 9 : 1986 JT 765 : (1986) 4 SCC 678 :
(1986) 4 Supreme 258; Shanti Prasad Agarwalla v. Union of India, AIR 1991 SC 814 : 1991 Supp
(2) SCC 296.
Relations, 1961. In India, any Ambassador or envoy of a foreign State, any High
Commissioner of a Commonwealth country and any such member of their staff, as
the Central Government may specify, cannot be sued except with the consent of the
Central Government certified in writing by a secretary to the Government. The
provisions of section 86 of the Code of Civil Procedure apply in this respect as they
apply in relation to a foreign State and permission to sue can be granted on grounds
on which a foreign State can be allowed to be sued.1
11. MINOR
The normal age of majority in India is 18 years, but if a guardian is appointed
before that age by a court or property is taken under superintendence by a court of
wards, the age of majority is 21 years.1 The criminal law confers immunity on minors
of tender years; a child below 7 years cannot at all be held liable for any offence, 2
and a child between the ages of 7 and 12 is not liable unless he had attained sufficient
maturity to judge the nature and consequence of his conduct on the occasion. 3 As
regards contracts, a minor is incompetent to contract and an agreement entered into
with him is void.4 The law of torts makes no special provision for minors.
Prenatal injuries
A minor can sue for all torts committed against him like any other person except
that he has to bring his suit through a next friend. The preponderance of authority
now is that a minor can also sue for prenatal injuries.5 The difficulty, that at the time
the injury is inflicted, there is no legal person, for the foetus is not a legal person is
met either by holding that the cause of action arises on the birth of the child who is
deformed or by fictionally attributing personality to the foetus as is done in cases
where a posthumous child is held entitled to claim under the Fatal Accidents Act, 6
Workmen’s Compensation Act7 or under a Will8 in accordance with the maxim
Nasciturus pro jam nato habetur.9 On the recommendation of the Law Commission
the British Parliament passed the Congenital Disabilities (Civil Liability) Act, 1976,
section 1 of which provides that a person responsible for an occurrence affecting the
parent of a child, causing the child to be born disabled, will be liable to the child if he
would have been liable in tort to the parent affected. 10 There is no liability for a pre
conceptional occurrence if the parents accepted the particular risk. There are also
other exceptions and qualifications in the Act. It further appears that a deformed
child cannot claim damages either under the Act or under general law when the
deformity resulted because of an infectious disease suffered by the mother during
pregnancy and the fault of the doctor was in not advising the mother of the
desirability of abortion for although the doctor owed a duty to the mother to advise
1
. See, text and footnotes 53 and 54, supra.
1
. The Indian Majority Act, 1875.
2
. Section 82, Indian Penal Code 1860.
3
. Section 83, Indian Penal Code 1860.
4
. Section 11, Indian Contract Act, 1872; Mohori Bibee v. Dharmodas Ghose, (1903) 1 ILR 30 Cal 539
(PC).
5
. Montreal Tramways v. Leveille, (1933) 4 DLR 377; Pinchin v. Santam Ins., 1963 (2) SAF 254;
Watt v. Rama, (1972) VR 353; Duval v. Seguin, (1973) 40 DLR 3d 666 (Ont. CA); B. v. Islington
Health Authority, (1991) 2 WLR 501 (QBD); De Martell v. Merton and Sutton Health Authority,
(1992) 3 All ER 820 : (1991) 1 All ER 825 (QBD).
6
. The George and Richard, (1871) LR 3 Ad & Ecc 466.
7
. Williams v. Ocean Coal, (1907) 2 KB 422 (CA).
8
. Villar v. Gilbey, (1907) AC 139. See further, section 99(i) of the Indian Succession Act, 1925.
9
. SALMOND, Jurisprudence, 12th edition, p. 301; FLEMING, Torts, 6th edition, pp. 153, 154.
10
. Even before the Act, many cases were decided on the footing that such a liability is recognised
by the law. For example see Distillers Co. (Biochemicals) Ltd. v. Thompson, (1971) 1 All ER 694 :
(1971) 2 WLR 441 (HL); McKay v. Essex Area Health Authority, (1982) 2 All ER 771, p. 779:
(1982) 2 WLR 890 : 1982 QB 1166 (CA).
her of the infection and its potential and serious effects and on the desirability of the
abortion in those circumstances, it did not follow that the doctor was under legal
obligation to the foetus to terminate its life or that a foetus had a legal right to die;
such a claim for ‘wrongful life’ would be contrary to public policy as a violation of
sanctity of human life.11 When the pregnancy and birth follow a sterilisation
operation, the mother can claim in full the financial damage sustained by her as the
result of the negligent failure to perform the sterilisation operation properly,
regardless of whether the child was healthy or abnormal and she is entitled to
damages for loss of earnings, pain and suffering and loss of amenities including extra
care the child would require in case of being born deformed. 12 But the deformed child
in these circumstances would not be entitled to sue for damages as it could not be
said that there was any injury caused to the foetus or to the parents by the negligence
of the doctor which caused the deformity. In the absence of any Indian Act, the
Indian courts can take guidance from the English Act in deciding suits by minors
relating to congenital disabilities. The Supreme Court in Union Carbide Corporation
v. Union of India,13 referred to the English Act and held that those who were yet
unborn at the time of the Bhopal gas leak disaster and who are able to show that their
congenital defects are traceable to the toxicity from the gas leak inherited or derived
congenitally will be entitled to be compensated. Indeed, father of a girl child
conceived and born after the disaster who died after four months showing symptoms
of gas effect because the mother had inhaled the gas was allowed compensation of
Rs.1.5 lakh by the Supreme Court.14
No protection but age taken into account.—A minor enjoys no special protection in
a suit filed against him for a tortious act. But his age has to be taken into account
when any mental element such as intention, malice or negligence on his part is
relevant for deciding his liability. In Tillander v. Gosselin,15 a child aged 3 years
dragged another child of the same age for several feet and caused extensive injuries
but as intention or negligence could not be imputed to him because of his tender age,
he was not held liable. In Me Hale v. Watson,16 a minor aged 12 threw a metallic dart
towards a post made of hard wood hoping that its sharp end would stick; but instead
of sticking, the dart bounced and hit a girl standing close by. The High Court of
Australia absolved the minor of liability for negligence as a boy of his age could not
be expected to foresee the risk involved. In holding so the court applied the principle
that where an infant defendant is charged with negligence, his age is a circumstance
to be taken into account and the standard by which his conduct is to be measured is
not that to be expected of a reasonable adult but that reasonably to be expected of a
child of the same age, intelligence and experience. 17 The result of the case would
have been different if the dart had been thrown towards the girl. The Australian case
was followed by the court of appeal in Mullin v. Richards.18 In this case two fifteen
year old girls M and R were engaged in playing around with plastic rulers as if they
were fencing when one of the plastic rulers snapped and a fragment entered M’s right
eye as a result of which she lost all her useful eye sight. M brought proceedings for
11
. McKay v. Essex Area Health Authority, (1982) 2 All ER 771 : (1982) 2 WLR 890 : 1982 QB 1166
(CA).
12
. Emeh v. Kensington and Chelsea and Westminster Area Health Authority, (1984) 3 All ER
1044 : 1985 QB 1012 (CA). See further pp. 225227, post.
13
. AIR 1992 SC 248, p. 311 : (1991) 4 SCC 584. According to a report in M.P. Chronicle of June
30, 1995, 30 children were later found suffering from congenital heart diseases because of toxic
effect of the gas on their mothers.
14
. S. SaidUdDin v. Court of Welfare Commissioner, (1996) 3 SCALE (SP) 28 : (1997) 11 SCC
460.
15
. Tillander v. Gosselin, (1967) ACJ 306 (High Court of Ontario, Canada).
16
. (1966) 115 CLR 199, (1968) ACJ 273 (High Court, Australia).
17
. (1968) ACJ 273, p. 296. See further, American Restatement of the Law of Torts para 283
referred to at p. 294 of the report.
18
. (1998) 1 All ER 920 (CA).
negligence against R which were dismissed by the court of appeal on the ground that
the accident was not foreseeable. In holding so and adopting the test laid down in the
Australian case HUTCHISON, L.J. observed: “The question for the judge is not
whether actions of the defendant were such as an ordinarily prudent and reasonable
adult in the defendant’s situation would have realised gave rise to risk of injury, it is
whether an ordinarily prudent and reasonable 15 year old school girl in the
defendant’s situation would have realised as much.” 19 When contributory negligence
is alleged against a minor the same principle is to be applied; “the test is, what degree
of care for his own safety can an infant of the particular age reasonably be expected
to take.”20 Subject to these limitations, as earlier stated, a minor is liable like any
adult for the tortious acts. For example in the case of a violent assault and battery on
a harmless man, the act in itself is sufficient to support the cause of action and the
wrongdoer, even if a minor, is liable. 21 Infants are liable for wrongs of omission as
well as for wrongs of commission. Thus infants are held liable for assault, false
imprisonment, libel, slander22 seduction, trespass,23 wrongful detention of goods,24
fraud,25 embezzling money,26 and for nuisance and injuries to their neighbours,
arising from the negligent use and management of their property.
No liability in tort from void agreement.—A minor’s agreement is void even if he
fraudulently represents himself to be of full age27 and so he cannot be made to repay
a loan so obtained by changing the form of action to one for deceit. 28 But he can be
compelled to specific restitution, when that is possible, of property obtained by false
representation provided it is identifiable and still in his possession or control. 29 In the
words of LORD SUMNER; “Restitution stops where repayment begins.”30
Although an infant is liable for a tort, yet an action grounded on contract cannot be
changed into an action of tort. 31 Thus, an infant was held not liable for overriding a
mare which he had hired,32 or for unskillfully driving a motorcar and damaging it. 33
But where an infant hired a mare and was expressly told that she was not fit for
leaping, but she was put to a fence, and in taking it, fell upon a stake and was so
injured that she died, he was held liable, for it was just as much a tort as if he had
taken the mare out of the plaintiff’s stable without leave. 34 If it were in the power of a
19
. (1998) 1 All ER 920 (CA), p. 924.
20
. Delhi Transport Corporation v. Kumari Lalita, (1983) ACJ 253 (p. 256) : AIR 1982 Del 558 :
(1986) 59 Com Cas 162. See further, Amritsar Transport Co. v. Seravan Kumar, (1969) ACJ 82
(Punjab) : 1969 Cur LJ 53, Matias Costa v. Roque Augustinno Joeinto, (1976) ACJ 92 (Goa) : AIR
1976 Goa 1 : 1976 TAC 262; Yachak v. Oliver Blais Co. Ltd., (1949) AC 386; Gaugh v. Throne,
(1966) 1 WLR 1387 (CA) : 1967 ACJ 183; Jones v. Lawrence, (1969) 3 All ER 267 : 1970 ACJ
358. See further Chapter XIX, title 7(B).
21
. Swaroopkishore v. Gowardhandas, (1955) MB 355.
22
. Hodsman v. Grissel, Noy., 129; Defries v. Davis, (1835) 1 Bing NC 692.
23
. Bacon.
24
. Mills v. Graham, (1804) 1 B & P (NR) 140.
25
. In re, Lush’s Trusts, (1869) LR 4 Ch App 591.
26
. Bristow v. Eastman, (1794) Peake NPC 291, (223).
27
. Sadik Ali Khan v. Jaikishore, AIR 1928 PC 152 (There is no estoppel against a minor).
28
. Leslie (R) Ltd. v. Sheill, (1914) 3 KB 607 : 111 LT 306; Dhannumal v. Ram Chunder Ghose,
(1890) 24 Cal 265.
29
. Leslie (R) Ltd. v. Sheill, (1914) 3 KB 607 : 111 LT 306; See also, Ballett v. Mingay, (1943) KB
281 : 168 LT 34 : (1943) 1 All ER 143. Where an infant was successfully sued in detinue for the
nonreturn of a microphone and amplifier which he had hired from the plaintiff and improperly
parted with it to a friend.
30
. Leslie (R) Ltd. v. Sheill, (1914) 3 KB 607, p. 618.
31
. See, cases in footnote 91, supra.
32
. Jennings v. Rundall, (1799) 8 TR 335 : 4 R.R. 680.
33
. Motor House Company Limited v. Charlie Ba Ket, (1928) 6 Ran 763.
34
. Burnard v. Haggis, (1863) 14 CBNS 45 : 8 LT 320.
plaintiff to convert that which arises out of a contract into a tort, there would be an
end of that protection which the law affords to infants.35
Liability of parent.—A father or a guardian is not responsible for the torts of the
minor.36 But the circumstances of a case may be such as to constitute the child the
servant for the time being of the father, in which case the father may be liable as a
master for the acts, neglect and default of his child, as when he sends out his son on
some business with his cart and horse, and the son causes injury by negligence in
driving.37 A father may also be liable for his own personal negligence in allowing his
child an opportunity of committing a wrong, as when he supplies his son with an air
gun or allows him to remain in possession of it after complaints of mischief caused
by the use of the gun, and the boy afterwards accidentally wounds a person.38
12. LUNATIC
Insanity is a good defence in the Criminal Law when at the time of commission of
the crime, the accused by reason of unsoundness of mind was incapable of knowing
the nature of his act or that what he was doing was either wrong or contrary to law. 1
Such a wide exemption is not admissible in the law of torts the object of which is
compensation and not punishment. It may be generally stated that when the insanity
is of such a grave nature that the defendant was unable to know the nature of his act,
35
. Per LORD KENYON in Jennings v. Rundall, (1799) 8 TR 335, 336 : 4 R.R. 680.
36
. Vellapandiv v. Manicka Thai, (1970) ACJ 65 (Mad).
37
. Gibson v. O’Keeney, (1928) NI 66.
38
. Bebee v. Sales, (1916) 32 TLR 413; Newton v. Edgerley, (1959) 3 All ER 337, (1959) 1 WLR
1031. Contrast Gorely v. Codd, (1967) 1 WLR 19 : (1966) 3 All ER 891.
1
. Section 84, Indian Penal Code; M’Naghten’s Case (184360) All ER (Rep) 229.
he would not be liable in tort for the act in such a case will not be a voluntary act
which is necessary for constituting a tort.2
In cases where no specific intent or malice is an ingredient of the tort, the
defendant would be liable if he knew the nature of his act, although, because of
unsoundness of mind he was unable to know that what he was doing was wrong or
contrary to law. This would be the position in actions for trespass, 3 conversion,
defamation4 and other torts where what is necessary to prove is only that the
defendant intended to do the physical act which constitutes the tort. So a person was
held liable in tort for violent assault and battery when he knew the nature of his act
though because of mental disorder he did not know that it was wrong. 5 But in cases
where specific intent or malice is necessary to constitute the tort, e.g., malicious
prosecution, deceit or libel on a privileged occasion, the defendant will escape
liability if his defective mental condition negatives the existence of the required
specific intent or malice, as the case may be, though he is not so incapacitated as not
to know the nature of his act.6 In dealing with cases relating to the tort of negligence,
difficulty is created because the legal standard is that of a man of ordinary prudence
which eliminates the personal equation and idiosyncrasies of the defendant. The
defendant, therefore, may escape liability by showing that his act was not a voluntary
act, e.g., by proving that the act was entirely beyond his control, 7 but not merely by
showing that he was unable to take proper precautions because his mental faculties
were affected by disease of the mind. Thus a driver of a motor vehicle cannot escape
liability by showing that he felt that his vehicle was under a remote control from head
office,8 or by showing that he suddenly suffered a malfunction of the mind which so
clouded his consciousness that from that moment he was, through no fault of his
own, unable properly to control the vehicle or to appreciate that he was no longer fit
to drive.9
2
. Tindale v. Tindale, (1950) 4 DLR 263. See, Chapter 2, Title 2.
3
. Morris v. Marsden, (1952) 1 All ER 925 : (1952) 1 T.L.R. 941; Phillips v. Soloway, (1957) 6
DLR (2d) 570; Beals v. Hayword, (1960) NZLR 131; Squittieri v. De Santis, (1976) 75 DLR (3d)
629.
4
. Emmens v. Pottle, (1885) 16 QBD 354, p. 356.
5
. Morris v. Marsden, (1952) 1 All ER 925 : (1952) 1 T.L.R. 941.
6
. SALMOND and HEUSTON, Torts, 20th edition, (1992), p. 430.
7
. Roberts v. Ramsbottom, (1980) 1 All ER 7, p. 14 : (1980) 1 WLR 823 : (1980) R.T.R. 261;
Waugh v. James K. Allen Ltd., (1964) 2 Lloyd’s Rep. 1, p. 2.
8
. Buckley and Toranto Transportation Commission v. Smith Transport Ltd., (1946) 4 DLR 721
(Ontario CA).
9
. Roberts v. Ramsbottam, (1980) 1 All ER 7 : (1980) 1 WLR 823 : 1980 R.T.R. 261.

03-RnD Chapter 3 - p-33-72

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

03-RnD Chapter 3 - p-33-72

Hochgeladen von

Copyright:

Verfügbare Formate

PERSONAL CAPACITY 33

A member of Parliament as an undertrial prisoner is not above the law and is

Suits by Corporations.—A Corporation cannot obviously bring a suit for torts

profit.18 A government authority or corporation created by a statute is liable like

assault or defamation,1 seduction of a servant, 2 remains with the insolvent, and the

Das könnte Ihnen auch gefallen