Tortious Liability of State

Semester-IV
Constitutional Law - I
VICARIOUS LIABILITY OF
STATE AND SOVEREIGN
IMMUNITY
Md Yusuf Hayath,
Assistant Professor (Law),
MNLU-Aurangabad.
LLM-Constitutional Law (Gold Medalist),
UGC-NET’18, AP-RCET’18, AP/TS/KA/TN–SET’18.
In the words of Prof A V Dicey, who gave an
absurd example:
“If the Queen were herself to shoot the
P.M. through the head, no Court in
England could take cognizance of the
act.”
-Dicey’s “Law and the Constitution” 10th

Ed
Sovereign immunity
Sovereign immunity was developed on the divine right of Kings and
the maxim ‘Rex non potest peccare’ i.e. the King can do no
wrong.
The meaning of this legal maxim is multi-faceted-
(i) The sovereign, individually and personally and also in his
natural capacity as the King cannot be sued by any earthly
power or cannot be amenable to any jurisdiction.
(ii) The public affairs are not to be imputed to the King, so as to
render him personally answerable for it to his people.
(iii) The prerogative power of the crown does not injure anybody in
the country.
(iv) The King cannot sanction any act forbidden by law. He is
bound by the law. He is under the law but not above the law.
VICARIOUS LIABILITY OF GOVERNMENT FOR
THE TORTS COMMITTED BY ITS SERVANTS
• ‘Rex non potest peccare’ (The King can do
no wrong) is an ancient and fundamental
principle of the English Law which meant that
if a tort was committed by the King or the
King’s servants in the course of employment,
the injured has no right to sue the king under
the vicarious liability.
Thomas Duncan v James Findlater
(1839) 6 Cl & F 894
• This immunity was available only in
relation to torts, but not for breach of
contract and recovery of property.
• The courts in various decisions criticized
this exemption given to the king, opining
that it was against the principles of
equity, good conscience and justice.
• Hence, the British Parliament passed ‘The
Crown Proceeding Act, 1947’ by
abolishing the maxim ‘king can do no
wrong’.
• Now, the crown can also be sued for his
servants’ tortuous acts committed in their
course of employment under the principle
of ‘Respondent Superior’.
Indian Context: Historical Genesis
Constitutional Provisions
Art 294 (b)
Art 294. Succession to property, assets, rights,
liabilities and obligations in certain cases.—As
from the commencement of this Constitution –
(b) all rights, liabilities and obligations of the
Government of the Dominion of India and of the
Government of each Governor's Province, whether
arising out of any contract or otherwise, shall be
the rights, liabilities and obligations respectively of
the Government of India and the Government of
each corresponding State…….
Art 299 - Contracts
1. Every contract must be expressed to be
made by the President or the Governor (as
th case may be)
2. Every contract must be expressed by a
person authorised by the President or the
Governor (as the case may be)
3. Every contract must be expressed in the
name of President or the Governor (as the
case may be)
Art 300. Suits and proceedings
• 300. Suits and proceedings.—(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—
(a) 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
(b) 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.
• In India, the crown assumed sovereignty of India in
1858 and took over the administration of India from the
hands of the company.
• The Act declared that the Secretary of State in Council

to be a body corporate for the purpose of suing, and
being sued.
• This concept was reproduced in Government of India

Act, 1915 & 1935 which declared in its Section 32 thus:
– (1) The Secretary of State-in-Council may sue and

be sued by the name of 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 had not been
passed.
After the commencement of the Constitution – Cases
The Court:
Kasturi Lal v. State of U.P. AIR 1965 SC
• In the words of CJ I Gajendragadkar:
• “If a 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 referable 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, the 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 Court held that the tortuous act of the police officers
was committed by them in discharge of sovereign powers
and the State was therefore not liable.
• In Union of India v. Sugrabai (1969), a
military driver was driving a truck carrying
machine from military depot to military school
of army. The driver killed a cyclist by rash and
negligent driving. The Court held that it was a
function which could be performed by a private
person and hence the Government was liable by
holding that was not acting in the exercise of
the sovereign functions. However the court
accepted in certain cases transporting of
machine by a military truck can be regarded as
a sovereign function e.g. carrying arms and
ammunition for the immediate use of army
engaged in active military duty.
• In Govind Kumar v State of Raj. (2009), a 4 year child
had died on account of drowning in a pond in a small
village constructed by the Municipality. The pond was not
surrounded by wall by the municipality. The boy was
playing nearby the pond because he was not knowing the
consequences.
• The Raj. High Court held that the State was vicariously
liable to pay interim compensation of Rs. 40,000/- . It is the
duty of the State and Municipality to protect area of pond
in small village.
Sovereign power
• Every State exercises sovereign power in its territory.
• In performing its functions, it enjoys sovereign immunity.
This sovereign immunity is necessary for its existence
and functions.
• However, the State should follow the following
conditions:
(1) The employees of the State must exercise the sovereign
functions legally. If they violate the law, their act cannot be
treated as an act of sovereign function, and the State shall be
held responsible.
• (2) The State is liable for the torts committed by its servants
in exercise of non-sovereign powers. The State is not liable for
the torts committed by its servants in exercise of sovereign
power.
(3) Maintenance of law and order, services of defence forces,
administration of justice etc. are considered to be the
sovereign functions .
ACTS COMMITTED IN THE EXERCISE
OF SOVEREIGN POWERS
• In State of Orissa v. Padmalochan [AIR
1975 Ori. 41]
• A mob emerged on the scene of the office of
the Sub-Divisional Officer, Orissa to
protest. Military Police and some police
personnel manhandled some persons of the
mob resulting in injury to plaintiff. The
Court observed that although police
personnel manhandled the plaintiff without
permission of the Magistrate but it
occurred while the sovereign power.
• In Secretary of State v. Cockraft, it
was held that maintenance of a
military road is a sovereign function
and the Government is not liable for
the negligence of its servants in
stacking of gravel on a road which
resulted in a carriage accident causing
injuries to the plaintiff.
• In Baxi Amrik Singh v. Union of India, the driver,
Amrik Singh who was in the car received serious
injuries when an accident happened with the
military truck, which was driven by the driver, who
was an employee of military department.
• Amrik Singh brought an action against the
department. The Court observed that the driver was
on duty to check army-personnel-on-duty
throughout the day and he was discharging the
sovereign power.
• It was held since the military driver was acting in
discharge of a sovereign function of the State, the
Union of India was not liable for injuries sustained
by Amrik Singh as a result of rash and negligent
driving of the military driver.
• In Union of India v. Harbans Singh,
meals were being carried from the
cantonment, Delhi for distribution to
military personnel on duty. The truck
carrying meals belonged to the military
department and was being driven by a
military driver. It caused an accident
resulting in the death of a person. It was
held that the act was being done in
exercise of sovereign power, and, therefore,
the State could not be made liable for the
same.
• In State of M.P. v. Chironji Lal, the police
lathi charged an unruly mob consisting of
the students. In that agitation the students
hired the loud speaker of the plaintiff. In
the lathi charge, the plaintiff’s loud speaker
was damaged. He sued the State
Government for compensation. It was held
that the State Government was not liable to
pay compensation to the plaintiff as its
employees (police officers) did the act in
exercising the function of sovereign.
ACTS COMMITTED IN EXERCISE OF
NONSOVEREIGN POWERS
• In Satyawati Devi v. Union of India, Air Force
personnel played the game and returned by a bus. The
bus driver drove the bus negligently causing the death
of the husband of Satyawati Devi. The Central
Government pleaded that the accident was occurred
during the sovereign function and that too for defence
purpose as physical exercises were necessary to keep
the personnel in shape.
• But, the Court rejected the Government’s contention
and held that the act carrying the teams to play
matches could be performed by a private individual
and, therefore, it was not a sovereign function and the
Government was held liable.
• In Union of India v. Savita Sharma, it was held
that the driving of a military truck to Railway
Station to bring the jawans to Unit Headquarters
is an act of non-sovereign function and,
therefore, if the respondent gets injured while the
truck is being so driven, she is entitled to get
compensation.
• In Union of India v. Abdul Rehman, it was held
that the driving of a water tanker belonging to
Border Security Force (BSF) by a BSF driver is a
non-sovereign function, and the State is liable for
the damage caused by the negligent driving of
the tanker.
• In Nilabati Behra v. State of Orissa, petitioner’s
son died as a result of injuries inflicted on him in
police custody. The petitioner sent a letter to the
Supreme Court regarding all his suffering. The
Supreme Court treated it as a petition under Article
32 of the Constitution. The Court held the State of
Orissa liable and awarded a compensation to the
petitioner.
• Justice Verma 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
• In Bhim Singh v. State of J &K, the
petitioner (Bhim Singh), who was a
member of the Legislative Assembly was
illegally arrested by police officers who he
was on his way to vote at Srinagar.
• The State (Police) deprived the petitioner’s
Fundamental Right under Articles 21 and
22(2) and the State was held liable.
• The Court granted compensation to the
petitioner to a sum of amount Rs. 50,000/-
• In State of Madhya Pradesh v.
Shatibhai, police fired in air to disperse
mob. Plaintiffs who were standing on roof of
their houses sustained injuries from bullets
fired in the air. The police officers were
aware of their presence. It was held that the
Police Officers had the duty to take care
that no injury caused to persons living in
nearby houses.
• The Police Officers were negligent towards
plaintiffs and hence were held liable to pay
compensation under Article 21.
• In Saheli v. Commissioner of Police, Delhi,
the Supreme Court awarded the compensation of
Rs. 75,000/- to the mother of the boy aged 9 years
who died due to beating and assault by a Police
Officer, in the writ filled by the women’s Civil
Rights Organization, known as SAHELI.
• In Kalawati v. State of Himachal Pradesh, two

persons died in a Government Hospital owing to
negligence of hospital staff who administered
nitrous oxide in place of oxygen to the patients.
The Court awarded compensation under Article 21.
• In C. Ramkonda Reddy v. State of A.P. certain
miscreants entered the jail with the help of a
ladder at night and hurried bombs on inmates,
resulting in the death of one of them and injury to
another. As there was considerable violation of
the right to life guaranteed by Art. 21, the claim
for compensation was allowed. It was observed
that even if the State is acting in exercise of
sovereign power, it would be liable if Article 21 is
violated, as Article 300(1) does not constitute an
exception to Article 21.
• In N. Nagendra Rao v State of AP (1994), the appellant
was carrying on business in fertilizer and food grains
under licenses.
• The Police has arrested on the grounds of black-
marketing and adulteration. Also, seized the stocks
fertilizers, food grains, etc.
• DRO – directed AAO (Asst. Agricultural Officer) to dispose
of the seized goods.
• AAO – did not take any steps.
• Appellant acquitted for lack of evidence.
• Appellant inquired about his goods and found futile of
decomposed state, unfit for cultivation and consumption.
• Appellant filed for damages or compensation.
• State denied took the stance of Kasturi Lal’s case.
• The HC relied on Kasturi Lal and set aside the decree.
• The SC overruled and held the State vicariously liable.
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-Yusuf Hayath

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Semester-IV

-Dicey’s “Law and the Constitution” 10th

(a) any legal proceedings are pending to which the Dominion of

(b) any legal proceedings are pending to which a Province or an

• The Act declared that the Secretary of State in Council

• This concept was reproduced in Government of India

– (1) The Secretary of State-in-Council may sue and

• In Kalawati v. State of Himachal Pradesh, two

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