Professional Documents
Culture Documents
Vicarious Liability of The State
Vicarious Liability of The State
what he does, being done for my benefit and under my direction, I am responsible for the
consequences of doing it.1
1. INTRODUCTION
The concept of tortious liability of the state for the wrongs committed by its servants
during their course of employment and in the exercise of their duty essentially arises from the
principle of vicarious liability. It is a fundamental principle of the English legal system that the
king can do no wrong.2 Under the English Common Law, the king was considered to be
supreme and no action could be brought against the King for any kind of wrong committed by
his servants by the authority of the king during the course of employment. It has been held in
Tobin v. The Queen that He (the king) is not liable to be sued civilly or criminally for a
supposed wrong. That which the sovereign does personally, the law presumes will not be wrong;
that which the sovereign does by command to his servants, cannot be a wrong in the sovereign
because, if the command is unlawful, it is in law no command, and the servant is responsible for
the unlawful act, the same as if there had been no command. 3 Clearly, the crown could never be
held liable for the wrongs committed by its servants, not even for the ones expressly authorized
by it.4 It is worth mentioning that atleast from the time of Edward I, the king was not suable in
his own courts as a matter of right. 5 Not even the feudal lords could be sued of right in his own
court. That the king as chief of the feudal system had no court above him, in which he could be
1 Lord Brougham in Duncan v. Findlater, (1839) 6 Cl & Fin 894 at 910, 7 ER 934 at 940.
2 Feather v. The Queen, (1865) 6 B&S 296, per Cockburn, CJ.
3 Tobin v. The Queen, (1864) 16 CB (NS) 310, 354.
4 Canterbury (Viscount) A. H. General, (1842) 1 Ph 306; High Commissioner for India & Pakistan v.
Lall, (1948) 50 Bom LR 649 : AIR 1948 PC 121 : 75 IA 225 ; Union of India v. F. Gian Chand Kasturi
Lal, (1954) 56 PLR 68 : AIR 1954 Punj 159 : ILR (1954) Punj 602.
5 There were repeated early statements that before the time of Edward I (1272-1307) the king was suable
in his own courts. See 1 F. Pollock and W. Maitland, History of English Law 500 (1895) (quoting and
translating passage from Y.B. 33-5 Edw. I 471) ; sources cited in R. Watkins, The State as a Party Litigant
6 (1927).
held liable, as the feudal lords could be in his, was the result of accident than theory. 6 But this
principle of not holding the Crown liable was abrogated by the Crown Proceedings Act 1947
which brought about major changes in the English legal history by making the Crown liable for
the tort committed by its servants similar to the private individuals. In India, although we do not
have any separate act to deal with the state liability, however, Article 300 of the Indian
Constitution states that
"(1) The government of India may sue and be sued by the name of 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 Dominion of India and corresponding Provinces or the corresponding
Indian States might have sued or been sued if this Constitution had not been enacted."
It can be observed that there has been evolution in the legal world from keeping the state
immune from being sued in the court of law to making the state pay under the tort of vicarious
liability.7
6 Ibid, at 7.
7 The primary aim of this paper is to track the progress of the concept of vicarious liability of the state in
the legal world. A comparative study of the evolution of this concept under various jurisdictions and
viewing this concept from the historical perspective are the few key areas of discussion to be followed.
The reader will notice that this paper is primarily focused on the vicarious liability of the state in India,
although, I have discussed at length the position in various jurisdictions, especially UK.
[2]
The first case in which the issue as to how far the State was liable in tort arose before the
Supreme Court of India is State of Rajasthan v. Vidyawati10. In this case, SINHA, C.J., made the
following observations: The immunity of the Crown in the United Kingdom was based on the
old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and,
therefore, of authorising or instigating one, and that he could not be sued in his own courts. In
India, ever since the time of the East India Company, the Sovereign has been held liable to be
sued in tort or in contract and the common law immunity never operated in India. Now that we
have, by our Constitution, established a Republican form of Government, and one of the
objectives is to establish a socialistic State with its varied industrial and other activities,
employing a large army of servants, there is no justification, in principle or in public interest, that
the State should not be held liable vicariously for the tortious act of its servant.11
The above mentioned decision of the Supreme Court of India was followed by another
decision in the case of Kasturilal Ralia Ram Jain v. State of U.P.12 wherein the court, speaking
through GAJENDRAGADKAR, C.J., fully approved the decision of P EACOCK, C.J., in the case of
Peninsular and Oriental Steam Navigation Co.13, stating per incuriam that it enumerated a
principle which has been consistently followed in all subsequent decisions14 and observed: It
must be borne in mind that when the State pleads immunity against claims for damages resulting
from injury caused by negligent acts of its servant, the area of employment referable to sovereign
powers must be strictly determined. Before such a plea is upheld, the Court must always find that
10State of Rajasthan v. Vidyawati, AIR 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 : (1958-65)
ACJ 296.
11 Ibid, at 304.
12Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR
955.
13 (1868-1869) 5 Bom HCR App 1 P. 1 (Curiously the case is not reported in any Calcutta Law Journal).
14 Supra, note 12.
[4]
the impugned act was committed in the course of an undertaking or employment which is
referable to the exercise of delegated sovereign power.15
The decision of the Supreme Court of India in the case of Kasturilal has been criticised by
a leading constitutional authority of India. It has also been condemned as being unsatisfactory. 16
The authority of this case has, although, been greatly undermined by the subsequent decision of
the apex court, as recently observed by a three judge bench: much of its efficacy as a binding
precedent has been eroded17, however, as a matter of fact, this case is yet to be overruled.
15 Ibid.
16 SEERVAI, Constitutional Law of India, 2nd edition, pp. 1137-39, 1992.
17 Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667.
[5]
absolute immunity from damages. In United States, the Dalehits case18 was reaffirmed by the
Supreme Court in Melvin Larid v. Jim Nelma19 by holding that the state is not responsible for the
damage caused from sonic booms by military planes under the provisions of the Federal Tort
Claims Act, unless negligence is proved. It would indeed be appropriate to say that the concept
of state immunity is still holding the United States of American by strong force, especially in the
federal jurisdiction.
defending the state argued that during the time of the operation only the right Fallopian
tube was operated on and the left tube was left untouched. The appellants also argued that
the negligence on the part of the doctors would not make the state vicariously liable and
that the damages paid to her for the maintenance of the child could not be decreed as
there was no element of tort involved. It was further pleaded that Smt. Santra had herself
put her thumb impression on a paper containing a recital that in case the operation was
not successful, she would not claim any damages. It was pleaded that she was estopped
from raising the plea of negligence or from claiming damages for an unsuccessful
sterilization operation from the State.
After the District Court dismissed the matter giving a compensation of Rs 54,000
and an interest rate of 12% per annum, the State filed a suit in the Supreme Court
challenging the decision. Due to the failure of the operation and the conceivement of the
child, the respondent had filed a suit claiming for damages worth Rs. 2 lakhs for the
maintenance of the child and herself as she already as seven children. The respondent
claimed that if she had offered herself for complete sterilization operation, both the
Fallopian tubes should have been operated upon. The doctor who performed the operation
acted in the most negligent manner.
Moreover she also stated that as the operation was carried out in a government
hospital and the doctor being a government servant, the state was vicariously liable for
the act of the doctor as a servant of the State.
Judgement:
The explanation given by the appellants for absence of state liability was rejected by the trial
court which the suit for a sum of Rs. 54,000 with pendate lite and future interest at 12% per
annum. The decision was confirmed by the Appellant Court and State High Court. The trial court
as also the lower appellate court both recorded concurrent findings of fact that the sterilisation
operation performed upon Smt. Santra was not 'complete' as in that operation only the right
[9]
Fallopian Tube was operated upon while the left Tube was left untouched. The courts were of the
opinion that this exhibited negligence on the part of the Medical Officer who performed the
operation. Smt. Santra, in spite of the unsuccessful operation, was informed that sterilisation
operation was successful and that she would not conceive any child in future. The plea of
estoppel raised by the defendants was also rejected. The amount of Rs. 54,000/- which has been
decreed by the courts below represents the amount of expenses which Smt. Santra would have to
incur at the rate of Rs. 2,000/- per annum in bringing up the child up to the age of puberty.
Having regard to the above facts the court said that Smt. Santra was entitled to full
compensation from the State Government and appeal was dismissed but without any order as to
cost.
however, held that where the fundamental rights of the citizens are violated, the plea of
sovereign immunity, which is assumed to be continued by article 300 of
the Constitution25, cannot be put forward. This view of the High Court of Andhra Pradesh
has been affirmed by the Supreme Court of India in State of Andhra Pradesh v. Chella
Ramakrishna Reddy26.
Nilabati Behra v. State of Orissa27
Another landmark judgement was Nilabati Behra v. State of Orissa awarding
compensation to the petitioner for the death of her son in police custody. The court held
that a claim in public law for compensation for violation of human rights and
fundamental freedoms, the protection remedy for enforcement and protection of such
right, is distinct from and in addition to the remedy in private law damages for tort. The
court expressly held that principle of sovereign immunity does not apply to the public law
remedies under Article 32 and Article 226 for the enforcement of fundamental rights. The
Kasturi Lal case ratio is confined to private law remedies only.
The distinction between public and private law and the remedies under the two has been
emphasised in Common Cause, a Registered Society v. Union of India28 and Chairman Railway
Board v. Chandrima Das29 cases. It was held "where public functionaries are involved and the
matter relates to the violation of fundamental rights or the enforcement of public duties, the
remedy would still be available under the public law notwithstanding that a suit could be filed for
damages under private law."
25 See pp. 2 of this paper.
26State of Andhra Pradesh v. Chella Ramakrishna Reddy, AIR 2000 SC 2083.
27Nilabati Behra v. State of Orissa, AIR 1993 SC 1960 : (1993) 2 SCC 746.
28Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667.
29Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988 : (2000) 2 SCC 465.
[11]
5. 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.
States 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 in Martin Burn Ltd. Vs. Calcutta Corporation31. The Court said A
result flowing from a statutory provision is never an evil.
30Saheli v. Commissioner of Police, AIR 1990 SC 513.
31Martin Burn Ltd. Vs. Calcutta Corporation, AIR 1966 SC 529, at 535.
[12]
As suggested by the Law Commission there is need to prescribe the liability of the
State under the law of torts and in the interest of Justice we should avoid the arbitrary
distinction between the sovereign and non sovereign function of the State and must look
for the just provision against the preserver as well.
King can do no wrong should be interpreted literally, if King violates my right but
not compensates me then no doubt king is doing wrong, to overcome his wrong he is
bound to compensate me and save the web of jural relationship, he has been carrying with
his subject.
6. BIBLIOGRAPHY
6.1. BOOKS REFERRED
Ratanlal and Dhirajlals The Law of Torts, 26th Edition, Revised by Justice G. P. Singh,
Lexis Nexis Butterworths Wadhwa Nagpur Publication.
Geoffrey Samuels Tort: Cases and Materials, 2 nd Edition (2008), Thomson Sweet and
Maxwell Publication, London.
Landmark Cases in the Law of Tort, Edited by Charles Mitchell and Paul Mitchell, Hart
Publishing, Oxford and Portland , Oregon, 2010.
Martin Mathews and Jonathan Morgan, Tort Cases and Materials, 6 th Edition, Oxford
University Press.
www.indiankanoon.org
www.lawyersclubindia.com
www.legalservicesindia.com
www.ebc-india.com
www.manupatra.com
www.jstor.com
www.heinonline.com
www.westlawindia.com
[14]