Lecture-VI (Part-XIL, Chapter-1II: Articles 299 & 300) : State Liability
Lecture-VI (Part-XIL, Chapter-1II: Articles 299 & 300) : State Liability
Lecture-VI (Part-XIL, Chapter-1II: Articles 299 & 300) : State Liability
State Liability
(Part-XIL, Chapter-1II: Articles 299 & 300)
as follows:
The executive power of the Union and of each State shall
and to the
extend to the carrying any trade or business
on of
of
acquisition, holding and disposal of property and the making
contracts for any purpose. Provided that
far such
The said executive power of the Union shall, in
so as
a)
with respect to
trade or business or such purpose is not one
133
134 Lectures on Constitutional Law-lI
Lec.6
which Parliament may make laws, be subject in each State to
legislation by the State, and
b) The said executive power of each State shall, in so far as such
trade or business or such purpose is not one with respect to
which the State Legislature may make laws, be subject to
legislation by Parliament.
In Mahabir Auto v. 10C (AIR 1990 SC 1031)-it has been
held that the freedom of the Government to enter into business with
anybody it likes is subject to the condition of reason and fair play
as well as public interest.
Articles 299 and 300 of the Constitution lays down the
provisions relating to Contractual liability and Tortious Liability
respectively of the State i.e. the Union and State Governments for
the breach of contracts and torts committed by its servants.
The Government Liability or State Liability, may be explained
as follows-
1. Tortious Liability of the State (Article 300).
2. Contractual Liability of the State (Article 299).
1. TORTIOUS LIABILITY OF THE STATE
(ARTICLE 300)
Article 300 of the Indian Constitution, which speaks about the
Suits and Proceedings, deals with the legal status of the Union and
State Governments to sue and be sued in respect of the torts
committed by its servants, while discharging their duties on behalt
of the Government, the Union or State. Article 300 reads as
follows-
(1) The Govemment 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 tne
Legislature of such State enacted by virtue of powers conferred
State Liability 135
Lec.6]
have sued or been sued if this Constitution had not been enacted.
be liable."
136 Lectures on Constitutional Law-lI [Lec.6
Position in England: Earlier, the King (Crown) or the State
in England enjoyed
complete immunity (i.e., not liable) for the torts
committed by its servants. This immunity was
of the well known maxim "The
given on the basis
King can do no wrong'. In course
of time, with the increase in functions
of the Government and
expansion the Govemmental machinery, such immunity was found
of
to be
impracticable in the interests of justice and social security.
Consequently, the Crown Proceedings Act, 1947 was passed, and
the immunity was withdrawn.
the Crown is
According to Section 2(1) of the Act,
vicariously liable like an ordinary individual or any
other Employer for the torts
committed by the servants.
Position in India: Indian Parliament has not
the Crown passed any Act like
Proceedings Act, prescribing the tortious
Govemment/State. However, Article 300 of the Indian liability the
of
down the provisions Constitution lays
relating to the liability of the Government/State
for the torts committed
by its servants. In India also, the Govemment
State is vicariously liable for the torts
committed by its servants.
Article 300(1) of the Constitution
Government of India may be sued in relationprovides that the
to its affairs in the
like case as the Dominion of
India, subject to any law, which
be made by Act of may
Parliament. However, the
of liability is not clear position and extent
(uncertain) due to lack of
Whenever such situation to
prescribe legislation.
proper
arises, the Courts traced back to State/Government liability
followed sovereign, pre-constitutional period and
in P& O Steam
non-sovereign dichotomy, enunciated in 1861
Navigation Case (5 Bom. H.C.R.
Sovereign Immunity: *Sovereign Appl.1).
exemption (immunity) from liability on theImmunity' means
sovereign." The State or Government is not ground of being
the torts committed
by its servants (enjoys vicariously liable for
provided the following conditions are sovereign immunity)
satisfied:
1. The tort iscommitted by the servant in
obligation imposed on him by law. discharge of duty or
Lec.6] State Liability 137
functions.
gency, and hence, they are regarded as non-sovereign
138 Lectures on Constitutional Law-II
Lec.6
Position of State/Government Liability after the
Constitution of India: Even after the Constitution of India came into
force, the courts followed sovereign, non-sOvereign dichotomy in
many
cases in spite of the Court's
Supreme decision in Vidyavathî's case:
State of Rajasthan v. Vidyavathi (AIR 1962 SC 933)-
Vidyavathi's husband died of an accident having knocked down
by a Collector's jeep on official trip. On appeal, the Supreme Court
through Sinha C.J. held the State liable without taking into
consideration, the Sovereign, Non-Sovereign Dichotomy.
In spite of the Supreme Court's decision in
Vidyavathi's
Case, the position as to the liability of the Government/State is not
certain/clear. Following cases illustrate on this
point:
Kasturilal v. State of Uttar Pradesh (AIR 1965 SC
In this case, Kasturilal's 1039)-
gold was seized by the police under the
suspicion that it was the stolen property. The gold was kept in the
Police Malkhana under the
custody of a Head Constable. He
misappropriated the gold and fled for Pakistan. In an action
by
Kasturilal against the State for of the
recovery Gold or its equivalent
value, the trial court dismissed the suit. On
Court upheld the Trial Court's decision appeal, the Supreme
following the rule of
sovereign:
non-sovereign dichotomy laid down in P& O Steam Navigation Case.
The above rule was followed
State of Uttar Pradesh v. Tulasi by the Supreme Court in:
It is to be noted Ram, (AIR 1971 All. 162)-
that, plead the
to
stated above are to be satisfied. If immunity both the conditions
either of the two conditions is
absent, the State is liable as in the case
of Hindustan Lever
Limited v. State of Uttar
Pradesh, (AIR 1972 All. 486).
Gross negligence by the
is
Servant: The Government/State
vicariously liable for the gross
negligence of its servants. Relevant
case on this
point is:
Ramakanda Reddy v.State, (1989)- The A.P. High Court
held the State liable to
pay compensation. In this case, an undertrial
State Liability 139
Lec.6