VICARIO

US
LIABILITY
OF STATE
Submitted by: Zaheen
Roll no: 118/14
BA LLB, Sec: B
Submitted to: Ms. Anju Berwal

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Index

VICARIOUS LIABILITY OF STATE

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
Uncertainty of Present position in India

VICARIOUS LIABILITY OF STATE

v./vs. versus

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Abbreviations used....

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

VICARIOUS LIABILITY OF STATE

1. Peninsular

and

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List of cases
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. Peoples 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.
1.

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Introduction

VICARIOUS LIABILITY OF STATE

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 others 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.

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POSITION IN ENGLAND

VICARIOUS LIABILITY OF STATE

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
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

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advance of the Common law, before the enactment of the Crown Proceeding Act,
1947, which has revolutionised the law in England, also.

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

VICARIOUS LIABILITY OF STATE

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in relation to their respective affairs in the like cases as the Secretary of State in
Council might have sued if this Act had not been passed.

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 governments 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

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Resultant position

VICARIOUS LIABILITY OF STATE

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 State 9. In that case, the plaintiff contended
8 (1861) 5 B.H.C.R. App. P.1.
9 (1873) ILR 1 Cal. 1

VICARIOUS LIABILITY OF STATE

10

that the Government had made a contract with him for the issue of a licence for the
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sale 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
Bhanjis case.11

10 I.L.R. 1 Cal. 11.

11 R.K. Bangia at 136

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11

Vidyawati case- a broad approach

In Vidyawati v. Lokumnal12, the plaintiffs 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 Collectors bungalow for the Collectors 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. Vidyawati 13,
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

12 A.I.R. 1957 Raj. 305

13 Supra 10
14 A.I.R. 1965 S.C. 1039.

VICARIOUS LIABILITY OF STATE

be exempt from liability, otherwise not.15

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12

which could be considered to be in delegation of sovereign powers, the State would

In Shyam Sunder vs. the State of Rajasthan 16, 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 students procession, when
the same became unruly. The loudspeaker set belonging to the plaintiff, which was
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.

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being used by the students in their procession, got damaged. In an action by the
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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 a sovereign function, and the State is not liable for any damage caused in the
exercise of that function.

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Kasturi Lal case

14

VICARIOUS LIABILITY OF STATE

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

20 Supra 12
21 Supra 11 at 147

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the present claim is not sustainable.22

15

inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that

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 Lals 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

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VICARIOUS LIABILITY OF STATE

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Sovereign immunity is subject to Fundamental Rights Death

or injury to persons
In Peoples Union for Democratic Rights v. State of Bihar 26, 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
Peoples 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 & K 28, 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
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

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pleading that the detention was for medical treatment of the mental imbalance of
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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

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 testsOne 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
31 Supra 29
32 AIR 1994 SC 2663

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in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No
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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:

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The determination of vicarious liability of the State being linked with the negligence
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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.

Present position in India is uncertain

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

VICARIOUS LIABILITY OF STATE

20

the Houses of Parliament was placed before the Lok Sabha in 1969. It has not yet
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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 Vidyawatis34 and Kasturi
Lals35 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.

33 Supra 32
34 Supra 12
35 Supra 14

WEBSITES

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BIBLOGRAPHY

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VICARIOUS LIABILITY OF STATE

www.wikipedia.org
www.scribd.com
www.legalserviceindia.com
www.manupatra.com
www.indiankanoon.com

Dictionary
Blacks 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

Law of torts- Salmond

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idjuewjs

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VICARIOUS LIABILITY OF STATE

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

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

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servants or agents at Common Law by reason of being their employer;

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 Crowns 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 but it i quite clear that