DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, ANDHRA PRADESH

SUBJECT
Law of Torts

PROJECT TITLE
VICARIOUS LIABILITY OF STATE

NAME OF THE FACULTY

PROF. DR.P. SRI DEVI
B.Sc., M.L., Ph.D., DEAN. ACADEMIC AFFAIRS & RESEARCH

NAME OF THE CANDIDATE:

D. SAI SIDDI SRIKHAR

ROLL NUMBER: 2018027

SEMESTER – 1
ACKNOWLEDGEMENT

I want to express my gratitude to respected Dr. Sri Devi madam, who gave me this very good
opportunity to research on Discharge of torts, which helped me in studying various aspects about
waiver of torts and in turn gave me a good knowledge on what conditions the discharge of torts is
granted.
Secondly, I would like to thank the team DSNLU, who provided me assistance through various
online resources to accomplish this project.

D. SAI SIDDI SRIKHAR

2018027, Section – A
1st Semester.
ABSTRACT
Vicarious Liability deals with cases where one person is liable for the acts of others. So in a case of
vicarious liability both the person at whose behest the act is done as well as the person who does the
act are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment. The common examples of such a liability are:

(1) Liability of the principal for the tort of his agent;

(2) Liability of partners of each other’s tort;

(3) Liability of the master for the tort of his servant.

(4) Liability of the State or Liability of the Administration.

Constituents of Vicarious Liability

So the constituents of vicarious liability are:

(1) There must be a relationship of a certain kind.

(2) The wrongful act must be related to the relationship in a certain way.

(3) The wrong has been done within the course of employment.
 INDEX

 Abstract

 List of cases

 Introduction

 Position in England

 Article 300 of Constitution of India

 P & O Steam Navigation Co. vs. Secretary of State

 Vidyawati case

 Kasturi Lal case

 Sovereign and Non-sovereign functions

 Position in India

 Conclusion

 Biblography
ABBREVIATIONS USED :

v./vs. – versus

co. – company

ltd. – limited

A.I.R. – All India Reporter

S.C. – Supreme Court

U.P. – Uttar Pradesh

A.P. – Andhra Pradesh

J. & K. – Jammu and Kashmir

List of cases :

1. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861)

5 B.H.C.R. App. P.1.

2. Nobin Chander Dey v. Secretary of State I.L.R. 1 Cal. 11.

3. Secretary of State for India in Council v. Hari Bhanji I.L.R. 1 Cal. 11.

4. Vidyawati v. Lokumal A.I.R. 1957 Raj. 305.

5. Shyam Sunder v. The State of Rajasthan A.I.R. 1964 S.C. 890.

6. Kasturi Lal v. The State of U.P. A.I.R. 1965 S.C. 1039.

7. State of M.P. v. Chironji Lal A.I.R. 1981 M.P. 65.

8. People’s Union of Democratic Rights v. State of Bihar A.I.R. 1987 S.C. 355.

9. Bhim Singh v. State of J. & K. A.I.R. 1986 S.C. 494.

10. Rudal Sah v. State of Bihar A.I.R. 1983 S.C. 1086.

11.N. Nagendra Rao & Co. v. State of A.P. A.I.R. 1994 S.C. 2663.
 Introduction

The word ‘Vicarious’ means to ‘feel or experience by watching or reading somebody else do
something’. So ‘Vicarious Liability’ means being liable for something that somebody else has done.
In legal terms, it is the liability of one person which may arise for the act done by another person. The
common examples of such a liability are:

i. Liability of the Principal for the tort of his agent

ii. Liability of partners for each other’s tort

iii. Liability of the master for the tort of his servant

iv. Liability of the state for the tort of its employees

In case of ‘Vicarious Liability of the State’, some questions arise automatically. Why do we need to
study the liability of the state differently? Why cannot we deal with the cases against the state as we
treat the others?

The reasons for some extra privileges to be given to the state are:

A. The state needs to perform some extra functions and duties which cannot be undertaken by a
private individual.
B. The state is the ‘law maker’. Since it has made the law, theoretically it cannot commit a
wrongful act.

C. The taxes collected from the masses are supposed to be used for public welfare. It is illogical
and unfair to take tax from one private individual and pay compensation, from that money, to
another.

But with the increase of the functions of the state, it started becoming unjustified to retain the
immunity of the state against its servants. So certain old rules were abolished and new ones, made.

Getting into the details of the topic, the relevant history must be taken into account.
POSITION IN ENGLAND

In common law, the crown could not be sued in tort either for wrong authorized by it or committed by
its servants in course of employment. Moreover no action could lie against the head of the department
or other superior officials for the act of their subordinates for relationship between them was not
master and servant but of fellow servants. The individual wrongdoer was personally liable and he
could not take defence of orders of Crown, or state necessity. The immunity of the Crown from
liability did not exempt the servant from liability. The result was that, whereas an ordinary master was
liable vicariously for the wrong done by his servant, the government was not liable for a tort
committed by its servant.1

The maxim of the common law was “the King can do no wrong”2 and, therefore, no action in tort was
possible against the crown either for wrongs which has expressly authorized or for wrongs committed
by its servants in the course of their employment.3 The actual wrongdoer acting on behalf of the Crown
did not enjoy this exemption but while he personally could be sued, his superior officers could not, for
he would not be their servant, but like them the servant of the Crown.45

With the increase in the functions of the state, the crown became one of the largest employers
of labour in the country. Under these circumstances, the rule of immunity for the Crown became
highly incompatible with the demands of justice. To overcome the shortcomings of the prevailing law
and to ensure justice, various devices were found out. The Parliament intervened by enacting the
Crown Proceeding Act, 1947, which into force on January 1, 1948. Hence the very citadel of the
absolute rule of sovereign has now been blown up. Section 2(1) provides as follows-“Subject to the
provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, it would be subject in respect of torts committed by its servants
or agents, subject to other provisions in this Act. As already pointed out, the law applicable to India
with respect to torts committed by a servant of the Government was very much in advance of the
Common law, before the enactment of the Crown Proceeding Act, 1947, which has revolutionised the
law in England, also.

1 R.K. Bangia at 132

2 Hale, P.C. Vol. 1 at 43

3 Canterburry (Viscount) v. Att. Gen., 1842, 1 Ph. 305.

4 Bainbridge v. P.M.G., 1906, 1 K.B. 178.

5 Law of torts by Sinha at 98

Article 300 of the Constitution of India

The law in India with respect to the liability of the State for tortuous acts of its servants has become

entangled with the nature and character of the role of the East India Company prior to 1858. It is

therefore necessary to trace the course of development of the law on this subject, as contained in article

300 of the Constitution.

Clause (1) of Article 300 of the Constitution provides that the Government of India may sue or

be sued by the name of Union of India and the government of State may sue or be sued by the name of

State and may, subject to any provisions which may be made by the act of parliament or the state

legislature enacted by virtue of powers conferred by this constitution, sue or be sued in relation to their

respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the

corresponding Indian states might have sued if this constitution had not been enacted.

Even though more than 50 years have elapsed since the commencement of the constitution, no

law has so far been made by parliament as contemplated by article 300, notwithstanding the fact that

the legal position emerging from the article has given rise to a good amount of confusion. Even the

judgements of the Supreme Court have not been uniform and have helped to remove the confusion on

the subject, as would be evident from what is stated hereinafter.

Act of 1935

Even when the Government of India Act, 1935, was enacted, (replacing the Act of 1915), the same
legal position was continued by section 176(1) of the Act which read as follows:

“The Federation may sue or be sued by the name of the Federation of India and a Provincial

Government may sue or be sued by the name of Province, and, without prejudice to the subsequent

provisions of this Chapter, may, subject to any provisions which may be made by an Act of the Federal

or a Province legislature enacted by virtue of powers conferred on that legislature by this Act, sue or

be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might

have sued if this Act had notPage been passed.”

 VICARIOUS LIABILITY OF STATE

Act of 1915

This very provision was practically contained in section 32 of the Government of

India Act, 1915. Sub-sections (1) and (2) of that section read as follows:

“(1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in

Council, as a body corporate.

(2) Every person shall have the same remedies against the Secretary of State in Council as he

might have had against the East India Company, if the Government of India Act 1858 and this Act

have not been passed.”

Government of India Act, 1858

When the governance of India was taken over by the British Crown in 1858, an Act was passed in that
year6, entitled the Government of India Act, 1858, Section 65 declared that government’s liability in
this behalf shall be same as that of the Company. It would be appropriate to set out the section in full:

“The Secretary of State in Council shall and may sue and be sued as well in India as in England

by the name of Secretary of State in Council as a body corporate; and all persons and bodies politic

shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the

Secretary of State in Council, as they could have done against the said Company; and the property and

effects hereby vested in Her Majesty for the purposes of government of India, or acquired for the said

purpose, shall be subject and liable to the same judgements and executions as they would, while vested

in the said Company, have been liable, to in respect of debts and liabilities lawfully contracted and

incurred by the said Company.”

Under the act of 1833,7 enacted by the British Parliament, the governance of India was
entrusted to the East India Company. The Act declared that the Company held the territories in trust
for His Majesty, his heirs and successors.

6 Act 21 and 22 Vic. Ch. 106

7 3 and 4 William IV ch. 85

RESULTANT POSITION

Thus, Article 300 of the Constitution practically takes us back to the Act of 1858, which, in its turn,

leads us to a consideration of the nature and extent of the liability of the East India Company.

A consideration of the pre- Constitution cases begins with judgement of the Supreme Court of Calcutta

in the case.

P & O Steam Navigation Co. vs. Secretary of State

In the case, Peninsular and Oriental Steam Navigation Company v. Secretary of

State for India8, it was actually reported as an Appendix to one of the Bombay High Court Reports –

5 B.H.C.R. App. P.1. A servant of the plaintiff-company was proceeding on a highway in Calcutta,

driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an

accident which was caused due to the negligence of the servants of the Government. For the loss

caused by the accident, the plaintiff claimed damages against the Secretary of State for India. Sir

Barnes Peacock C.J. (of the Supreme Court) observed that the Doctrine that the “King cannot do

wrong”, had no application on the East India Company. The company would have been liable in such

cases and the Secretary of State was thereafter liable (He was interpreting section 65, Government of

India Act, 1858, which equated the liability of the Secretary of State for India with of East India

Company). On this holding it was not necessary for Peacock C.J. to discuss the distinction between

sovereign and non- sovereign functions. But he made a distinction between the two and observed, that

if a tort were committed by a public servant in the discharge of sovereign functions, no action would

lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing

enemy property as prize.

The doctrine of immunity for acts done in the exercise of “sovereign functions”, enunciated in the P &
O case, was applied by the Calcutta High Court in Nobin Chander Dey vs. Secretary of State9. In
that case, the plaintiff contended that the Government had made a contract with him for the issue of a
licence for the sale of ganja and had committed breach of contract. The High Court held as under:

i. On the evidence, no breach of contract had been proved.

ii. Even if there was breach of contract, the act was done in exercise of sovereign power and,

therefore it was not actionable. The High Court expressly followed the P & O ruling.

One of the authorities for this point of view is the case of The Secretary of State for India in Council

vs. Hari Bhanji10, wherein the position was explained in the following way:

“The act of State of which the municipal courts of Britih India are debarred from taking

cognizance, are acts done in the exercise of sovereign powers which do not profess to be justified by

municipal law Where an act complained of is professedly done under the sanction of municipal law,
and in the exercise of powers conferred by that law, the fact that it is done by the sovereign powers is

not an act which could possibly be done by a private individual, does not oust the jurisdiction of the

civil court.”

The Law Commission of India, in its First Report in 1956, has discussed the whole question

and according to its view, “the law was correctly laid down in Hari Bhanji’s case.”11

8 (1861) 5 B.H.C.R. App. P.1.

9 (1873) ILR 1 Cal. 1
10 I.L.R. 1 Cal. 11.
11 R.K. Bangia at 136
Vidyawati case- a broad approach

In Vidyawati v. Lokumnal, the plaintiff’s husband died after being knocked down by a Government

jeep car which was driven rashly and negligently by an employee of the State of Rajasthan. At the time

of the accident, the car was being taken from the workshop to the Collector’s bungalow for the

Collector’s use. In an action against the State of Rajasthan, the State was held liable. The Rajasthan

High Court did not find any reason for treating the State differently from an ordinary employer and

held that the State of Rajasthan was liable for the wrong of the driver, According to Dave, J.: “The

State is no longer a mere Police State and this country has made vast progress since the above decision

(Peninsular Case) was made. Ours is now a Welfare State and it is in the process of becoming a fully

fledged Socialistic State. Every day, it is engaging itself in numerous activities in which any ordinary

person or group of persons can engage him or themselves. Under the circumstances, there is all the

more reason that it should not be treated differently from other ordinary employers when it is engaging

itself in activities in which any private person can engage himself.”

On appeal, the Supreme Court confirmed the decision of the Rajasthan High Court and

endorsed the view expressed by it. In State of Rajasthan v. Vidyawati13, the observations made by

the Supreme Court may also be noted. “In this connection, it has to be remembered that under the

Constitution, we have established a welfare State, whose functions are not confined only to maintain

law and order, but extend to engaging in all activities including industry, public transport, State trading

to name only a few of them. In so far as the State activities have such wide ramification involving not

only the use of sovereign powers but also its powers as employers in so many public sectors, it is too

much to claim that the State should be immune from the consequences of tortious acts of its employees

committed in the course of their employment as such.”

In spite of the decision of the Supreme Court in Vidyawati case, the position is not very certain
and satisfactory. The Supreme Court in the case of Kasturi Lal v. Stale of U.P.14 has again stated
that if the act of the Government servant was one which could be considered to be in delegation of
sovereign powers, the State would be exempt from liability, otherwise not.

12 A.I.R. 1957 Raj. 305

13 Supra 10
14 A.I.R. 1965 S.C. 1039
In Shyam Sunder vs. the State of Rajasthan16,’ the Supreme Court e the driver of a truck engaged in a
famine relief work is negligent, the State will be liable for the same, as famine relief work is not a
sovereign function of the State. It is a work which can be undertaken by private individuals.17

Torts committed by servants of state in discharge of obligations imposed by Law and in

exercise of sovereign functions

Tort committed while performing duly in discharge of obligations imposed by law has been

considered to be a defence in India.

The exemption of the State from liability to pay damages for the tortious act of the servants,

where a Government servant in carrying out or purporting to carry out duties imposed by

the law has been justified on the ground that in such cases, the Government servant purports

to carry out duties imposed by the letter of the law and is controlled by the law and not by

the Government.

In order to exempt the State from liability, it is further necessary that the statutory functions

which are exercised by the Government servant were exercised by way of delegation of the

sovereign power of the State. In case, the tortious act committed by the servant was in

discharge of non-sovereign functions, the State would be liable for the same.18

Acts of police officials

The Madhya Pradesh High Court made a similar decision in State of MP v. Chironji Lal19. In this case,
the police made a lathi charge on a student’s procession, when the same became unruly. The
loudspeaker set belonging to the plaintiff, which was being used by the students in their procession, got
damaged. In an action by the owner of the loudspeaker against the State to recover compensation for
damage to the loudspeaker, it was held that maintaining law and order including quelling of riot is
sovereign function, and the State is not liable for any damage caused in the exercise of that function.

15 Supra 11 at 138

16 A.I.R. 1964 S.C. 890.

17 Supra 11 at 139

18 Ibid at 145

19 A.I.R. 1981 M.P. 65.

Kasturi Lal Case :

, the Supreme Court also refused

In Kasturi Lal Ralia Ram Jam v. State of U.P.20, the Supreme Court also refused to hold the State

liable for the act done by its servants in the exercise of statutory duties. In this case, a partner of the

firm of jewellers in Amritsar, Kasturi Lal Ralia Ram Jam, happened to go to Meerut (in U.P.) reaching

there by a train in the midnight. He was carrying a lot of gold and silver with him. The police

constables, on the round in the market through which he was passing, suspected that he was in the

possession of stolen property. He was taken to the police station. He, with his belongings, was kept in

the police custody under the provisions of the Cr. P.C. Next day, he was released on bail and sometime

thereafter the silver was returned to him. The gold was kept in the police Malkhana, and the same was

then misappropriated by the Head Constable, Mohammad Amir, who thereafter fled to Pakistan. The

plaintiff brought an action against the State of U.P. claiming either the return of the 103 tolas of gold,

or compensation of Rs. 11.000/- in lieu thereof.21

It was found that the police officers failed to observe the provisions of the U.P. Police

Regulations in taking care of the gold seized, The Supreme Court held that since the negligence of the

police officers was in the exercise of statutory powers which can also be characterised as sovereign

powers, the State was not liable for the same.

According to Gajendragadkar, C.J.: “In the present case, the act of negligence was committed

by police officers while dealing with the property of Ralia Ram which they had seized in 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 the

employees of the respondent during the course of its employment; but the employment in question

being of the category which can claim the special characteristic of sovereign power, the claim cannot

be sustained, and so we inevitably hard back to what chief justice Peacock decided in 1861 and hold

that the present claim is not sustainable.

20 Supra 12

21 Supra 11 at 147
The position was thus, stated by the supreme court in Kasturi Lal v. State of U.P.23: “If the tortious

act is committed by a public servant and it gives rise to a claim for damages, the question to ask is,

Was the tortious act committed by the public servant in discharge of statutory functions which are

preferable to, and ultimately based on, the delegation of the sovereign powers of the State of such

public servant? If the answer is in the affirmative action for damages for loss caused by such tortious

act will not lie. On the other hand, if the tortious act has been committed by a public servant in

discharge of duties assigned to him, not by virtue of the delegation of any sovereign power, an action

for damages would lie. The act of the public servant committed by him during the course of his

employment is, in this category of cases, an act of servant who might have been employed by a private

individual for the same purpose.”24

Basis of the judgement in Kasturi Lal case

The State of U.P. was held to be not liable on the grounds that:

The police officials were acting in discharge of statutory powers

The power of the police official in keeping the property in the Police Malkhana was a

sovereign function.

Kasturi Lal bypassed

Although the decision of the Supreme Court in Kasturi Lal’s case still holds good, for practical
purposes its force has been considerably reduced by a number of decisions of the Supreme Court.
Without expressly referring to Kasturi Lal or distinguishing or overruling this case, a deviation from
this decision has been made. Under the circumstances in which the State would have been exempted
from liability if Kasturi Lal had been followed, the State has been held liable. The State has been held
liable in respect of loss or damage either to the property or to a person.25

22 Ibid at 148

23 Supra 12

24 Supra 11 at 146

25 Ibid at 151
Sovereign immunity is subject to Fundamental Rights Death or injury to persons

In People’s Union for Democratic Rights v. State of Bihar26, about 600 to 700 poor peasants and

landless persons had collected. Without any previous warning by the police or provocation on part of

those collected, the Superintendent of Police surrounded the gathering with the help of police force and

open fired as a result of which at least 21 persons, including children died and many more were

injured. The People’s Union of democratic rights (PUDR) 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 State should pay compensation of Rs. 20,000 for every case of death

and Rs. 5,000 for every injured person. This amount was ordered to be paid within two months without

prejudice to any just claim for compensation that may be advanced by the sufferers afterwards.27

In Bhim Singh vs. State of J & K28, the Supreme Court recognised the liability of the state to

pay compensation, when the right to life and personal liberty is guaranteed under Article 21 of the

constitution has been violated by the officials of the State. Bhim Singh, the petitioner, who was an

M.L.A. was wrongfully detained by the police and thus prevented from attending the assembly session.

The Supreme Court ordered the payment of Rs. 50,000 by way of compensation to the petitioner.29

In Rudal Sah v. State of Bihar30, the petitioner was acquitted by the Court of Sessions on June 3,
1968 but was released from the jail more than 14 years thereafter, on October 16, 1982. In the habeas
corpus petition, the petitioner not only sought his release but also claimed ancillary reliefs like
rehabilitation, reimbursement of expenses likely on medical treatment and compensation for unlawful
detention. The State could not give any justifiable cause of detention except pleading that the detention
was for medical treatment of the mental imbalance of the petitioner. The Supreme Court ordered the
payment of compensation of Rs.30,000 (as an interim measure) in addition to the payment of Rs.
5,000, which had already been made by the State of Bihar. It was also stated that the said order of
compensation did not preclude the petitioner from bringing a suit to claim appropriate damages from
the State and its erring officials.31

26 A.I.R 1987 S.C 355

27 Supra 11 at 154

28 A.I.R. 1986 S.C. 494

29 Supra 11 at 155

30 A.I.R. 1983 S.C. 1086

Sovereign and non sovereign functions

Distinction between sovereign and non sovereign functions- Nagendra Rao case This distinction

between sovereign and non sovereign functions was considered in length in N. Nagendra Rao vs.

State of A.P.32 All the earlier Indian decisions on the subject were referred to the court enunciated the

following legal principles, in its judgement:

“In the modern sense, the distinction between sovereign and non-sovereign power does not

exist. It all depends on nature of power and manner of its exercise. Legislative supremacy under the

Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and

subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law

made by the legislature may be bad or may be ultra vires, but, since it is an exercise of legislative

power, a person affected by it may challenge its validity but he cannot approach the court of law for

negligence in making the law. Nor can the government in exercise of its executive action; be sued for

its decision in political and policy matters. It is in public interest that the acts performed by the State,

either in its legislature or executive capacity, it should not be answerable in torts. That would be

illogical and impractical. It would be in conflict with every modern notion of sovereignty.”

The court in the above case suggested the following tests-

“One of the tests to determine if the legislative and executive function is sovereign in nature is,
whether the State is answerable for such actions in courts of law. For instance, acts such as defence of
the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to
acquire and retain territory, are functions which are indicative of external sovereignty and are political
in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil
Procedure Code would lie in respect of it. The State is immune for being sued, as the jurisdiction of the
courts in such matters is impliedly barred.”

The court proceeds further, as under:

“but there the immunity ends. No civilised system can permit an executive to play with the people of
its country and claim that it is entitled to act in any manner, as it is sovereign. The concept of public
interest has changed with structural change in the society. No legal or political system today can place
the State above (the law) as it is unjust and unfair for a citizen to be deprived of his property illegally
by negligent act of the officers of the State without any remedy. From sincerity, efficiency and dignity
of the State as a juristic person, propounded in the nineteenth century as sound sociological basis for
State immunity, the circle has gone around and the emphasis now is more on liberty, equality and the
rule of law. The modern social thinking of progressive societies and the judicial approach is to do
away with archaic State protection and place the State or the government on par with any other juristic
legal entity. Any watertight compartmentalisation of the functions of the State as ‘sovereign and non-
sovereign’ or ‘governmental or non-governmental’ is not sound. It is contrary to modern
jurisprudential thinking. The need of the staeto have extraordinary powers cannot be doubted. But,
with the conceptual change of statutory power being statutory duty for the sake f society and the
people, the claim ofa common man or ordinary citizen cannot be thrown out, merely because it was
done by an officer of the State; duty of its officials and right of the citizens are required to be
reconciled, so that the rule of law in a Welfare State is not shaken.”

The court emphasised the element of welfare state in these words:

“in a welfare state functions of the state are not only defence of the country or administration of justice
or maintaining law and order, but it extends to regulating and controlling the activity of the people in
almost every sphere, educational, commercial, social, economic, political, and even marital. The
demarcating line between sovereign and non sovereign powers, for which no rational basis survives,
has largely disappeared. Therefore barring functions such as administration of justice, maintenance of
law and order and repression of crime etc. Which are among the primary and inalienable functions of a
constitutional government, the state cannot claim any immunity.”

The court linked together state and the officers:

“The determination of vicarious liability of the State being linked with the negligence of its officers, if
they can be sued personally for which there is no dearth of authority and the law misfeasance in
discharge of public duty having marched ahead, there is no rational for the proposition that even if the
officer is liable the State cannot be sued.”

31 Supra 29
32 AIR 1994 SC 2663
POSITION IN INDIA

Has the law as stated in Kasturi Lal been changed through a number of decisions of the Supreme

Court referred to above? Should the courts in India follow Kasturi Lal or subsequent decisions of the

Supreme Court in which the State has been held liable for the wrongs of its servants? It is interesting to

note that in many of the cases, the Supreme Court has granted compensation as an ancillary relief

while exercising its writ jurisdiction under Article 32 of the Constitution. The Supreme Court has not

only itself granted compensation as, an interim measure but has also expressly stated that the same is

granted without prejudice to the right of the petitioners to claim just compensation from the State by a

subsequent regular suit. This approach by the Supreme Court is a welcome measure which was long

overdue to do away with the outmoded law which was being applied for historical reasons, and

perhaps, owing to the wrong interpretation of the law on the subject.

In Kasturi Lal, the Supreme Court had expressed dissatisfaction at the prevailing position, when

Gajendragadkar, C.J. stated:

“Our only point in mentioning the Act is to indicate that the doctrine of immunity which has been

borrowed in India in dealing with the question of the immunity of the State in regard to claims made

against it for tortious acts committed by its servant, was really based on the Common Law principle

which has now been substantially modified by the Crown Proceedings Act. In dealing with the present

appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by

process of law, has to be told when he seeks a remedy in a court of law ground that his property has

not been returned to him, that he can make no claim against the State. That, we think, is not a very

satisfactory position in law. The remedy to cure this position, however, lies in the hands of

Legislature.”

In its First Report on the ‘Liability of State in Tort’, The Law Commission of India recommended

legislation prescribing State liability, as in England. On the basis d that Report, a Bill entitled The

Government (Liability in Tort) Bill, 1967’ was introduced in the Lok Sabha. The Bill as reported by

the Joint Committee of both the Houses of Parliament was placed before the Lok Sabha in 1969. It has

not yet become the law. The Bill seeks to define the liability of the Government towards

third parties for the wrongs of its servants, agents and independent contractors employed by it.

In N. Nagendra Rao & Co. v. State of A.P.33, 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’s34 and Kasturi Lal’s35 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 the 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 no relevance in the present

day.

It is unfortunate that the recommendation of the Law Commission made long back in 1956, and

the suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state

of affairs in this regard is against social justice in a welfare State. It is hoped that the Act regarding

State liability will be passed without much further delay. In the absence of such legislation, it will be in

consonance with social justice demanded by the changed conditions and the concept of welfare State

that the courts will follow the recent decisions of the Supreme Court rather than Kasturi Lal.

But the present scenario has completely changed favoring the public at wide.

33 Supra 32

34 Supra 12

35 Supra 14
 VICARIOUS LIABILITY OF STATE

BIBLOGRAPHY

WEBSITES

www.wikipedia.org

www.scribd.com

www.legalserviceindia.com

www.manupatra.com

www.indiankanoon.com
Dictionary

Black’s legal dictionary

Books

Law of Torts by R.K. Bangia

Law of torts by Justice G.P. Singh Law

of Tort by P.S.A. Pillai

Last visited website: www.manupatra.com

 VICARIOUS LIABILITY OF STATE

Law of torts- Salmond

The Crown

There is no remedy against the crown for a tort. For any violation by the crown of the rights of subjects

the appropriate remedy, if there is one at all, is not an action but a petition of right. This remedy,

however, is limited in its scope, and is not available in cases of tort. The crown cannot be charged with

negligence, fraud or other forms of tortuous wrongdoings, nor is it responsible for the acts of its agents

and servants. The rule is subject to the following qualifications:-

a) A petition of right will lie against the Crown for the recovery of damages for the breach of

contract; and not the less so, it is presumed, because that breach of contract is also a tort.

b) A petition of right will lie against the Crown for the specific restitution of property wrongfully

detained in the possession of the Crown; or for the value of such property, when the Crown has

had the benefit of it and specific restitution is impossible.

“The only cases”, it has been said, “in which the petition of the right is open to the subject are

where the land or goods or money of a subject have found their way into the possession of the Crown,

and the purpose of the petition is to obtain restitution, or if restitution cannot be given, compensation

in money; or where the claim arises out of contract, as for goods supplied to the Crown or to the public

service”

Law of torts- Sinha

The law on this topic has been greatly changed by the Crown Proceedings Act, 1947 which

came into force on January 1, 1948. It applies to torts committed on or after February 13, 1947

(Section 12).

Section 2(1) provides as follows-“Subject to the provisions of this Act, the Crown shall be

subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it

would be subject:
 VICARIOUS LIABILITY OF STATE

a) In respect of any breach of those duties which a person owes to his

b) In respect of any breach of the duties attaching at Common Law to the

ownership, occupation, possession or control of property.”

Section 2(2) renders the Crown liable for breach of statutory duty, provided the duty binds

persons other than the Crown, s well as the Crown itself, and that breach of duty renders them liable in

tort.

Section 2(3) provides that where functions are conferred by law directly on an officer of the

Crown, he is regarded for the purpose of the section as if he were acting under the Crown’s

instructions.

Section 2(4) gives the Crown benefit of any statute regulating or limiting the liability of a

Government Department or Crown Officer.

Section 2(5) excludes proceedings against the Crown for acts done by any person “while

discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any

responsibilities which he has in connection with the execution of judicial process.”

Subject to the reservation of certain statutory rights, Section 3 provides for proceedings against

the Crown for infringement by a Crown servant or agent, with the authority of the Crown, of a patent,

registered trade mark or copyright.

Section 4 applies to the Crown the law relating to indemnity and contribution.

Although the most important purpose of the act is to make the Crown liable and to put him in

the same position as a private person.

CONCLUSION.

In all the cases discussed before, the entity sought to be made liable is not the government but the
State. So far as the government is concerned, it may well say that the statutory authority is neither
accountable nor subordinate to it. Hence the government cannot be visited with the consequences
flowing from a wrong order made by a statutory authority. As far as the State is concerned, it cannot
put forward any such plea inasmuch as the statute is enacted by it by Legislature. The appointment of
the authority is also done either by the Statute itself or by such authority as may be authorised by the
Statute. The act of the statutory authority in such a case is an act done for and on behalf of the State.
Hence the state is held liable. State’s liability for the acts or omissions of statutory authorities arises
only in cases where the statutory authority acts outside his legal authority while purporting to act
pursuant to the legal authority conferred upon him and the act or omission, which causes or results in
damage to a person, is not within the ambit of the statutory protection, if any, contained in such
enactments. This rule is evolved for the obvious reason that an act done under a statute and in
accordance with the statute can never amount to a tort as was said by the Supreme Court by following
cases. The Court said “A result flowing from a Statutory provision is never an evil”. “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.”
ABSTRACT

Vicarious Liability deals with cases where one person is liable for the acts of others. So in a case of
vicarious liability both the person at whose behest the act is done as well as the person who does the
act are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment.

The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend
the administration would be liable for the torts committed by its servants is a complex problem
especially in developing countries with ever widening State activities. The liability of the government
in tort is governed by the principles of public law inherited from British Common law and the
provisions of the Constitution. The whole idea of Vicariously Liability of the State for the torts
committed by its servants is based on three principles:

 Respondeat superior (let the principal be liable).

 Quifacit per alium facit per se (he who acts through another does it himself).
 Socialisation of Compensation.