Introduction

As we know the state is a legal entity and not a living personality, it can’t work by
itself, it has to act through human agency, i. e. through its servants. When we discuss
the tortious liability of the state, it is really the liability of the state for the tortious acts
of its servants that have to be considered. Vicarious liability refers to a situation where
one person can be held liable for the wrongs committed by its servants or employees.
Usually, the master may be held liable for the torts committed by his servants in the
course of employment. But what about the liability of government in case of a tort
committed by its servants? Here the doctrine of sovereign immunity is applied.

Doctrine of Sovereign immunity

Sovereign immunity is a legal doctrine by which the sovereign or state is given
immunity from civil suit, criminal prosecution and legal wrong committed by it. This
doctrine gives protection to the state. It is justification for wrongs committed by the
state or its servants. This principle is derived from the legal maxim “rex non potest
peccare,” meaning “the king can do no wrong.” The doctrine of sovereign immunity is
based on the Common Law principle that the King can’t commit any wrong and that
he cannot be guilty of personal negligence or misconduct, and as such cannot be
responsible for the negligence or misconduct of his servants.

Position in England
At common law, initially, the position was that the Crown could not be sued in tort
either for wrong authorized by it or committed by its servants, in the course of their
employment. This position has been entirety changed after passing of the Crown
Proceedings Act, 1947. Now the crown is liable for the tort committed by its servant,
just like a private individual.

Position in India
Unlike the Crown proceedings Act, 1947(England), we don’t have any statutory
provision mentioning the liability of the state in India. The Law Commission of India
in its very first report recommended the abolition of this outdated doctrine. But for
various reasons, the draft bill for the abolition of this doctrine was never passed, and
thus it was left to the courts to decide on the compatibility of this doctrine in
accordance with the Constitution of India. The position of state liability as stated
Article 300 of the constitution of India is as under :

300. (1) 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.

(2) If at the commencement of this Constitution-

o any legal proceedings are pending to which the Dominion of India is a party,
the Union of India shall be deemed to be substituted for the Dominion in
those proceedings; and

o any legal proceedings are pending to which a Province or an Indian State is a

party, the corresponding State shall be deemed to be substituted for the
Province or the Indian State in those proceedings

So, Article 300 only provides that that Union of India and the State are juristic persons
for the purpose of suit or Proceedings but the circumstances under which they can sue
or be sued have not been mentioned.

To know the present position as regards the liability of the State for tortious acts, we
have to go back to pre-constitution days

Evolution of the doctrine of Sovereign immunity

Pre-Constitutional era

Peninsular and oriental steam Navigation Company v. Secretary of State for

India– This was the first case in which the Sovereign immunity of the state was
debated. There was a heavy piece of iron made which was being carried by some
workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven
carriage as a result plaintiff’s horse was injured. The plaintiff filed a suit against the
government for damages due to negligence on the part of the servants employed by
the government.

Held- If the act was done in exercise of sovereign functions, the East India Company
would not have been liable, but if the function was a non-sovereign one, the company
would have been liable. Maintenance of the dockyard was considered to be a non-
sovereign function and, as such the government was made liable.

So, there was a distinction in liability, depending upon the sovereign and non-
sovereign functions of the East India company.

In Nobin Chander Dey v. Secretary Of State For India, the date was exempted from
liability when the function was considered to be a sovereign one. There the plaintiff
filed a suit contending that the Government had made a contract with him for the issue
of license for the sale of ganja, and had made a breach of the same. On the evidence, it
was held that there was no contract. Relying on P. & O. S. N. Co ‘ s case, it was
further held that assuming that there was a contract, the action couldn’t lie as the act
was done in exercise of sovereign function.

In The Sec. of State For India In Council v. Hari Bhanji, a suit was filed to recover
the excess duty collected by the state on a consignment of salt. The Madras High
court rejected the plea of immunity and held that no immunity attaches to actions done
other the colour of municipal laws and the immunity of East India company extended
only to acts of state.

So, in the P. & O. S. N. Co’ s for considering sovereign immunity the court took the
view of sovereign and non-sovereign function while in Hari Bhanji case court held
immunity is available to state in only ‘Act of State’.

So from the above discussion, the principle which emerges is that if the function
involved is a ‘sovereign function’, the state can’t be held liable in tort, but if it is a’
non-sovereign function’, the state will be liable. But the difficulty lies in devising a
certain criterion or other parameters to decide to which category the act belongs. In
fact, in a welfare state, it is very difficult to draw a distinction between the two.

Post-Constitutional Era

The Supreme Court gave one of the earliest decisions in the post-constitutional era in
the case of State of Rajasthan v. Vidhyawati on the issue of the liability of the state for
the acts of government servants. In this case, the driver of a jeep for the official
purpose of Collector drove negligently and rashly while taking the jeep from to the
collector’s bungalow for collector’s use injured a plaintiff’s husband, who suffered
injuries. The Supreme Court held that like any private employer, the government of
Rajasthan will be liable for the negligent act of its servant. According to Dave J. State
should not be treated differently from other ordinary employers when it is engaging
itself in activities in which any private person can engage himself.

In spite of the decision of the Supreme court in Vidyawati’s case, the position is not
very certain and satisfactory. In the case of Kasturi Lal v. State of U. P, the police
constable misappropriated the property kept in government malkhana and fled to
Pakistan, the Supreme court held that state was not liable as police authorities were
exercising sovereign functions. In this case, the court has again stated that if the act of
the government servant was one which could be considered to be in the delegation of
sovereign powers, the state would be exempt from liability.

Sovereign immunity is subject to Fundamental Rights

In peoples Union For Democratic Rights v. State of Bihar, around 600 to 700
peasants and landless persons had collected for a peaceful meeting without any
previous warning by the police or provocation on the part of those collected, the SP
surrounded the gathering with the help of police force and opened fire, as a result of
which at least 21 persons including children died any many more were injured. The
peoples Union Of Democratic Rights filed an application before the Supreme court
under Article 32 of the constitution, claiming compensation for the victims of the
firing. It was held by the Supreme court that the State should pay compensation of
rupees 20000 for every case of death and rupees 5000 for every injured person.

In Sebastian M. Hongray v. Union Of India, Bhim Singh v. State of J & K, Rudal

Sah v. State Of Bihar and Saheli v. Commissioner Of Police, Delhi, the Supreme
court recognized the liability of State to pay compensation, when the right to life and
personal liberty as guaranteed under Article 21 of the constitution had been violated
by the officials of the state.

In Sebastian M. Hongray, the army authorities took two persons in custody at

Manipur. The army authorities failed to produce those two persons in before the court
on the writ of habeas corpus. They were supposed to have met unnatural death while
in army custody. The wives of two missing persons were awarded exemplary costs of
RS. 1 lakh each.

In Bhim Singh, the petitioner, who was an M. L. A was wrongfully detained by

police and thus prevented from attending the assembly session. The Supreme court
ordered the payment of RS. 50000 by way of compensation to the petitioner.

In the State of A. P. V. Challa Ramkrishna Reddy, the High court held that the state
was liable to pay damages of Rs. 40000 to the claimant for injury caused to him by
police fire where negligence on the part of the police was established.

In Saheli v. Commissioner Of Police Delhi, the death of a 9-year-old boy was caused
as a result of beating and assault by a police officer. In the writ petition filed by the
Women’s Civil Rights Organisation, known as Saheli, the Supreme court allowed
damages to the boy’s mother.

Fundamental Rights under Article 21 available to foreign

nationals also

In Chairman, Railway Board v. Chandrima Das, a Bangladeshi woman was gang-

raped by railway employees in a railway building, at the Howrah railway station. It
was held by the Supreme court that the right to life contained in Article 21 is
available not only to every citizen of the country, but also to every person, who may
not be a citizen of the country. The Central Government was, therefore, held liable to
pay damages to the person wronged by railway employees.
In Maneka Gandhi v. Union Of India, the Supreme Court stated the following –
The Maxim that King can do no wrong or that the Crown is not answerable in tort has
no place in Indian because the sovereignty now vests in the people, who elect their
representatives to run the Government. The representative has to act in accordance
with the provisions of the Constitution and would be answerable to the people if they
act contrary to the provisions of the constitution.

In N. Nagendra Rao & Co. V. State of A. P., the Supreme court considered the
question of vicarious liability of the government for the negligence of its servants. It
noted the earlier Supreme court decisions in Vidyawati’s and Kasturi Lal’s cases,
recommendations of the law commission in its first report for statutorily recognizing
the liability of the state as had been done in England through crown proceedings Act,
1947 and in U. S. A through the Federal Torts Claims Act, 1946. It, therefore, held
that the doctrine of sovereign immunity has very less relevance in the present day. If
we see in the context of India we don’t have any law like England and the US.

It is unfortunate that yet no effect has been given to the recommendation of the law
commission made long back in 1956, and suggestions made by the Supreme court in
various cases. The unsatisfactory position of this doctrine is against social justice in a
welfare state. It is hoped that the Act regarding the state liability will be passed
without much further delay.

Conclusion
The recent judicial trend regarding the liability of state I’d undoubtedly, in favour of
holding the state liable in respect of tortious acts committed by its servants. In case of
wrongful arrest and detention, police atrocities, keeping the undertrial prisoners in jail
for long periods, committing assault or beating up prisoners, etc. the courts have
awarded compensation to victims or to their heirs and legal representatives of the
deceased. We can’t stick to the old concept of sovereign and non-sovereign functions
of the state for determining state immunity in modern age world where the functions
of the government in a welfare state are manifold, all of which cannot be said to be the
activities relating to the exercise of sovereign powers. With changed condition and
concept of the welfare state, the doctrine of sovereign immunity in its old form has
very less relevance in the modern age where the concept of sovereignty itself has
undergone a drastic change. We need an Act regarding state liability which can fulfil
the needs of modern age India.