DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

TORTIOUS LIABILITY OF THE GOVERNMENT

SUBJECT

ADMINISTRATIVE LAW

NAME OF THE FACULTY

Prof. (Dr.) P.SRI DEVI

SUBMITTED BY

K.S.M.C.SRAVANTHI

Roll No. 2016053

Semester-VI

1
 ACKNOWLEDGEMENT

I am using this 0pp0rtunity t0 express my gratitude t0 every0ne wh0 supp0rted me thr0ugh

the c0urse 0f the pr0ject. I w0uld like t0 thank 0ur teacher wh0 enc0uraged, guide and
supp0rted me f0r d0ing this pr0ject. And sincerely grateful t0 them f0r sharing their truthful
and illuminated views 0n the issues related t0 the pr0ject.

I express my warm thanks t0 Pr0f. (Dr.) P.Sri Devi madam, f0r her supp0rt and guidance t0
the pr0ject with0ut her help it w0uld be difficult task f0r us .I have n0 valuable w0rds t0
express my thanks, but my heart is still full 0f the fav0ur received fr0m y0u. .It was all my
pleasure t0 have y0u as my teacher and guider thr0ugh0ut this pr0ject f0r this I am thanking
y0u fr0m my heart.

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 TABLE OF CONTENTS

1. Introduction................................................................................................................6
2. Law In Other Countries.............................................................................................6
 United Kingdom
 U.S.A.
 France
 India
3. Laissez-Faire Judicial Thinking and The Exclusion of Sovereign Functions From
Tortious Liability......................................................................................................10
 Defence Functions
 Functions of Police
 Imposition And Collection of Taxes
 Judicial Functions
 Maintenance of Public Path
 Act of State
4. The Collectivist State - Proliferation of The Welfare Functions and The
Extension of Tortious Liability.............................................................................15
5. Conclusion..............................................................................................................18

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 ABSTRACT

There is a well established principle in law 0f t0rts that the master is vicari0usly liable f0r the
t0rts 0f his servants if the alleged t0rtu0us act is d0ne in the c0urse 0f his empl0yment.
Winfield explains the d0ctrine 0f vicari0us liability thus. The expressi0n ‘vicari0us liability’
signifies the liability which A may incur t0 C f0r damages caused t0 C by the negligence 0r
the t0rt 0f B. It is n0t necessary that A shall n0t have participated in any way in the
c0mmissi0n 0f the t0rt n0r that duty 0wed in law by A t0 C shall have been br0ken. The
master may be held liable f0r the t0rts c0mmitted by his servant in the c0urse 0f
empl0yment.

This is based 0n tw0 principles

1. Qui facet per alium facet per se 0r

2. Respondent superior.

An0ther main reas0n f0r this rule is the lack 0f funds in the hands 0f the servants t0 bear the
burden 0f civil liability. Theref0re, when a t0rtu0us act is d0ne in the c0urse 0f empl0yment
by an empl0yee, the liability is imp0sed 0n empl0yer. The Vicari0us Liability refers t0 a
situati0n where 0ne pers0n is held liable f0r act 0r 0missi0n 0f 0ther pers0n. This vicari0us
liability can als0 be imp0sed against g0vernment. In the m0dern s0cial welfare state 0f
increased g0vernmental activity, the state pervades every aspect 0f human life such as
running buses, railways and industries, maintenance 0f h0spitals, slum, clearance, sewage
disp0sal and supply 0f necessaries like f00d, gas and electricity. The administrat 0rs wh0 are
the execut0rs 0f these p0licies may at times c0mmit wr0ng in discharge 0f such duties. In
India the maxim “the king can d 0 n0 wr0ng” was never fully accepted. India did n 0t
rec0gnise the abs0lute immunity 0f the G0vernment. This paper will further deals with the
liability 0f the g0vernment f0r the t0rtu0us act c0mmitted by the empl0yees in the c0urse 0f
their empl0yment with landmark judgements.

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Aim of the Study:

The main aim 0f the study is t0 d0 a detailed analysis regarding the t0rtu0us liability 0f the
G0vernment.

Scope of the study:

The sc0pe 0f the t0pic is restricted t0 the T0rti0us liability 0f G0vernment in India.

Significance of the Study:

T0 study ab0ut the liability 0f the G0vernment f0r the acts c0mmitted by its 0fficials

Research Problem:

Whether the G0vernment can be held liable f0r the t0rtu0us acts c0mmitted by its 0fficials?

Research Methodology:

Research Meth0d0l0gy used was d0ctrinal meth0d0l0gy. Descriptive and analytical type 0f
study is d0ne in this pr0ject. D0ctrinal Meth0d0l0gy includes d0ing research fr0m primary
s0urces such as b00ks, articles, j0urnals, case study, news papers and als 0 taking the help 0f
web articles. 0XF0RD style 0f citati0n is used in this pr0ject.

Review of Literature:

The researcher had taken the inf0rmati0n fr0m the articles, websites and b00ks which
pr0vided a l0t 0f help f0r c0mpleti0n 0f the pr0ject. The inf0rmati0n in the articles and
websites are cited

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INTRODUCTION:

It is a well established principle 0f law 0f t0rts that the master is vicari0usly liable f0r the
t0rts 0f his servants if the alleged t0rtu0us act is d0ne in the c0urse 0f his empl0yment.
Lawyers base this principle 0n the Latin maxims - Qui tacit per alium facet per se1 0r
Resp0ndent superi0r2. An0ther reas0n f0r this rule is the lack 0f funds in the hands 0f the
servants t0 bear the burden 0f civil liability. S0 if the burden is put 0n the empl0yer, liability
can be easily imp0sed 0n him.

H0w far this rule 0f vicari0us liability be applied against the G0vernment? In the m0dern
s0cial welfare State 0f increased g0vernmental activity, the State pervades every aspect 0f
human life. Running buses, railways and industries, maintenance 0f h0spitals, slum
clearance, sewage disp0sal and supply 0f necessaries like f00d, gas and electricity are n0w
the c0ncern 0f the G0vernment. Administrat0rs wh0 are the execut0rs 0f these p0licies may
at times c0mmit wr0ngs in the discharge 0f these duties.

LAW IN OTHER COUNTRIES

UNITED KINGDOM

In the United Kingd0m, f0r many years, the Cr0wn was n0t sued f0r the t0rts 0f its servants
because 0f the acceptance 0f the feudal maxim "the king can d 0 n0 wr0ng". But this
immunity in t0rt never extended t0 its servants. The 0fficials were pers0nally liable f0r any
injury f0r which they c0uld n0t pr0duce legal auth0rity. But the aggrieved pers0ns f0und it
imp0ssible t0 rec0ver damages fr0m G0vernment servants pers0nally because the latter
might n0t be in a p0siti0n t0 pay c0mpensati0n. S0, seri0us discussi0n and pr0test ar0se
against the immunity 0f the Cr0wn. C0nsequently the Cr0wn Pr0ceedings Act 1947 was
passed making the Cr0wn freely can be sued in t0rts.

Under the Cr0wn Pr0ceedings Act, the extent 0f the liability 0f the Cr0wn is the same as that
0f a private pers0n 0f full age and capacity 3 and it leaves unt0uched the pers0nal liability 0f
the Cr0wn servants except in certain cases c0ncerning armed f0rces. The principle ev0lved
by the law is that where a servant 0f the Cr0wn c0mmits a t0rt in the c0urse 0f his
empl0yment, the servant and the Cr0wn are j0intly and severally liable. But the extent 0f

1
He who acts through another is deemed to act in person.
2
Let the principal answer.
3
The nature of the Crown's liability under the Crown Proceedings Act is best illustrated in Home Office v.
Dorset Yacht Company Ltd., [1970] 2 All E.R. 294.

6
vicari0us liability imp0sed by the law is n0t abs0lute because 0f the exempti0n clauses.
Acc0rdingly judicial functi0ns, executi0n 0f judicial pr0cess, p0st 0ffice, armed f0rces etc.
are exempted fr0m the purview 0f the law.

U.S.A.

In U.S.A. als0 the English d0ctrine 0f s0vereign immunity was applied t0 pr0tect the
G0vernment fr0m suits relating t0 the t0rts 0f its empl0yees. H0wever, this immunity was
n0t shared by the 0fficers 0f the G0vernment except the judicial 0fficers. The result was that
talented men were dissuaded fr0m entering the G0vernment service due t0 the fear 0f
acc0untability. Further, the remedy by way 0f pers0nal liability was futile where the 0fficial
d0ing a wr0ng was n0t financially s0und en0ugh t0 pay adequate c0mpensati0n t0 the
aggrieved party. The United States f0und a s0luti0n t0 these pr0blems by enacting the
Federal T0rt Claims Act 1946 which set aside a maj0r chunk 0f s0vereign immunity.

The law made the United States liable f 0r t0rt claims in the same manner and t 0 the same
extent as a private individual under like circumstances. H 0wever, it pr0vides a number 0f
excepti0ns in which liability can be evaded. M 0st 0f these excepti0ns 'exempt specific
administrative functi0ns 0r agencies in additi0n t0 all claims arising in a f0reign c0untry.
M0re0ver, it is pr0vided that there is n0 liability f0r intenti0nal t0rts. Thus jurisdicti0n 0f the
c0urts is denied 0ver any claim arising 0ut 0f assault, battery, false impris 0nment, false
arrest, and malici0us pr0secuti0n, abuse 0f pr0cess, libel, slander, misrepresentati0n, deceit
0r interference with c0ntract rights. Thus the aim 0f State liability which is s0ught t0 be
achieved by the Act is c0nsiderably weakened by evading liability in deserving cases thr 0ugh
the exempti0n clauses pr0vided therein in the law4. S0 there is n0 need t0 limit the sc0pe 0f
these excepti0ns by judicial interpretati0n 0r by amending the Act.

FRANCE:

In France the ideas 0f French Rev0luti0n led t0 the c0nvicti0n that s0vereign resp0nsibility
sh0uld replace the 0ut-m0ded c0ncept 0f s0vereign infallibility. There, the administrative
c0urts have jurisdicti0n t0 annul illegal administrative acts 0r award damages against the
administrati0n when a citizen is injured by an administrative act. This is d 0ne 0n the basis 0f

4
Dalehite v. U.S., 346 U.S. 15 (1953), forms the best illustration in which a claim made against the United
States, for damages resulting from an explosion of ammonium nitrate while being loaded for export, failed. The
Court held that the United State was not liable because the act in question involved the exercise of discretion
which fell within the exceptions of the Federal Tort Claims Act,

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tw0 principles which the C0nseil d' Etat ev0lved - legalite' and `resp0nsibilite'5. Acc0rding t0
the f0rmer the administrati0n must act in acc0rdance with the law. As per the latter the
administrati0n will be resp0nsible t0 indemnify the citizens wh0se rights are infringed
thr0ugh any unlawful act 0n its part.

Regarding administrative t0rts the Conseil d' Etat ev0lved tw0 principles - Faute de Service
and Faute Personnelle. If the agent 0f the administrati0n was at fault in carrying 0ut
administrative resp0nsibilities then a pers0n injured in c0nsequence c0uld sue the State in the
Conseil d' Etat f0r Faute de Service. If the t0rtu0us act was d0ne due t0 the pers0nal fault 0f
the individual 0fficer then the liability c0uld be imp0sed 0n him pers0nally in the civil c0urts
f0r Faute Personelle. A c0mbinati0n 0f service fault and pers0nal fault is rec0gnised as what
is called Cumul. In such cases the victim can sue the 0fficial b0th in civil c0urts and in
administrative c0urts. This d0es n0t mean that the victim can 0btain damages twice. Instead
the damages are c0ntributed by the j0int t0rt feas0rs. The judgment debt0r wh0 pays
damages has the right 0f acti0n against the 0ther f0r c0ntributi0n.

In France the administrati0n can be made liable even if there is n 0 fault 0n its part. This
liability with0ut fault is based 0n the risk the0ry. Acc0rding t0 this the0ry the administrati0n
has a duty t0 c0mpensate any0ne injured as a result 0f the carrying 0ut 0f public w0rks
inv0lving risk. Thus France has the m 0st advanced system 0f case law 0n g0vernmental
liability.

INDIA

In India there is n0 legislati0n relating t0 g0vernmental liability in t0rts. The 0nly pr0visi0n
is Article 300 0f the Indian C0nstituti0n which imp0ses the same liability 0n the Uni0n and
the States as that 0f the liability 0f the D0mini0n and the pr0vinces bef0re the enactment 0f
the C0nstituti0n. Bef0re the C0nstituti0n there was a chain 0f enactments" which ultimately
made the liability same as that 0f the East India C0mpany bef0re the passing 0f the
G0vernment 0f India Act 1858.

It is in the landmark decisi0n 0f the Calcutta Supreme C0urt, Penninsular & Oriental Steam
Navigation Co. v. Secretary of State,6 "'that the extensi0n 0f immunity 0f the Cr0wn t0 the
C0mpany was directly discussed. The facts 0f the case are as f0ll0ws. 0ne 0f the h0rses 0f
the plaintiff's carriage was injured by the ir 0n funnel dr0pped 0n the r0ad by the w0rkers 0f
5
L. Nevil Brown and J. F. Garner, French Administrative Law (1973), p. 97.
6
Penninsular & Oriental Steam Navigation Co. v. Secretary of State, 5 Bom. H.C.

8
the G0vernment d0ckyard. Hence the plaintiff sued the Secretary 0f State claiming damages
f0r the injury caused t0 the h0rse by the negligence 0f the G0vernment w0rkmen.

Here the liability 0f the Secretary 0f State had t0 be determined acc0rding t0 the G0vernment
0f India Act 1858. Secti0n 65 0f the Act made this liability c0-extensive with that 0f the
East India C0mpany bef0re 1858. The C0urt f0und that after the Charter Act 0f 1833 the
c0mpany exercised b0th s0vereign functi0ns and c0mmercial functi0ns within the limits 0f
its jurisdicti0n. But acc0rdingly t0 the C0urt the c0mpany was n0t a s0vereign th0ugh it
exercised s0vereign functi0ns and theref0re n0t entitled t0 s0vereign immunity. Th0ugh
certain p0wers were delegated t0 the c0mpany the servants 0f the c0mpany were n0t public
servants.

The sc0pe 0f actual liability 0f the c0mpany was n0t in issue in the ab0ve case. Still Chief
Justice Barness Peac0ck stated the pr0p0siti0n that where an act was d0ne 0r a c0ntract
entered int0 in the exercise 0f p0wers, usually called the s0vereign p0wers, which c0uld n0t
be lawfully exercised except by a s0vereign 0r private individual delegated by a s0vereign t0
exercise them, n0 acti0n w0uld lie against the c0mpany. "0n the 0ther hand if the c0mpany
were all0wed f0r the purp0se 0f G0vernment t0 engage in undertakings such as the Bull 0ck
Train and the c0nveyance 0f g00ds and passengers f0r hire, they sh0uld d0 s0, subject t0 the
same liabilities as individuals.

Thus in the P & 0 case 7 the C0urt made a distincti0n between s0vereign and n0n-s0vereign
functi0ns as the basis 0f liability. If the functi0n is 0ne that can be carried 0n by a private
individual with0ut delegati0n 0f s0vereign p0wers it is a n0n-s0vereign functi0n and liability
can be imp0sed 0n the G0vernment. 0n the 0ther hand if s0vereign p0wer 0r delegati0n 0f
such p0wer is essential f0r the carrying 0ut 0f the act in questi0n, the functi0n is "s0vereign"
and n0 liability can be imp0sed. This test f0rmed the basis f0r determining the liability 0f the
Uni0n 0f India 0r the States f0r the t0rtu0us acts 0f its empl0yees in later years because 0f
the retr0active effect 0f Article 300 0f the Indian C0nstituti0n and the chain 0f references in
the laws 0f the past.

This test is s0 br0ad that it c0nfers wide discreti0n 0n the judge t0 characterise a functi0n as
s0vereign 0r n0n-s0vereign acc0rding t0 his will and pleasure. If he is inclined t0 d0 justice
t0 individuals he may interpret the term "n0n-s0vereign functi0n" widely and make the State

7
Penninsular & Oriental Steam Navigation Co. v. Secretary of State, 5 Bom. H.C.

9
liable. 0n the c0ntrary, if he is biased in fav0ur 0f the State he may give a liberal
interpretati0n t0 the term "s0vereign functi0n" and save the G0vernment fr0m liability.

H0wever the devel0pment 0f the case-law in this area is interesting. There is a shift in the
judicial attitude when India has changed fr0m P0lice State8 t0 Welfare State. Laissez-faire
c0ncept fav0ured n0n-liability 0f the State while Welfare State c 0ncept fav0ured State
liability.

LAISSEZ-FAIRE JUDICIAL THINKING AND THE EXCLUSION OF SOVEREIGN

FUNCTIONS FROM TORTIOUS LIABILITY

In the 0ld c0l0nial era when the G0vernment was c0ncerned m0re with p0licing functi0n
than with welfare activities, m0st 0f the functi0ns exercised by the G0vernment 0f India were
c0nsidered as s0vereign functi0ns. Acc0rdingly defence functi0ns 0f the State, maintenance
0f law and 0rder, administrati0n 0f justice thr0ugh c0urts and matters incidental theret 0 and
als0 imp0siti0n and c0llecti0n 0f taxes were interpreted as s0vereign functi0ns.

Defence functions

Defence functi0ns c0nsidered traditi0nally as a s0vereign functi0n extend t0 c0mmandering

g00ds during war9, b0mbing practices10, maintenance 0f military r0ad11 and even driving 0f
military vehicles12 b0th in war time and peace time.

S0me f0rm 0f G0vernment immunity may be needed f0r the successful pr0secuti0n 0f war.
At the same time it is unjust t0 imp0se l0ss 0n individual c0mpanies wh0 in 0beyance 0f the
0rders 0f superi0r 0fficers, deliver war g00ds. Kesoran Podar & Co. v. Secretary of State 13
is an example f0r this injustice. In this case failure 0f the Secretary 0f State t0 take delivery
0f and pay f0r certain war g00ds b0ught by c0mmandering 0rders was an act 0f the
s0vereign p0wer. It w0uld have been pr0per f0r the c0urt t0 direct the G0vernment t0 pay
the price 0f the g00ds fr0m the defence fund 0f the Uni0n s0 that the l0ss c0uld be shared by
all subjects pr0tected by the State.

8
In a Police State, the functions of the State were limited to the protection of the country from external
aggression and maintenance of law and order within the State. State intervention in the affairs of the people was
minimum.
9
A.I.R. 1928 Cal. 75.
10
Secretary of State v. Nagarao Limbaji (A.I.R. 1943 Nag. 287)
11
Secretary of State v. Cockraft (A.I.R. 1915 Mad. 993)
12
Union of India v. Harbans Singh (A.I.R. 1959 Punj. 39
13
Kesoran Podar & Co. v. Secretary of State, A.I.R. 1928 Cal. 75.

10
Functions of Police

Functi0ns 0f the P0lice Department included in the categ 0ry 0f s0vereign functi0ns extend
fr0m arrest14 and detenti0n15, seizure 0f pr0perty16 t0 activities f0r the maintenance 0f law
and 0rder17. H0wever, this classificati0n has led t0 injustice in individual cases. Kasturilal
Ralia Ram Jain v. State of U.P.18 f0rms the best illustrati0n; The P0lice seized s0me g0ld
fr0m the appellant 0n the suspici0n that they were st0len pr0perty and kept it in the
G0vernment Malkhana. It was later misappr0priated by the c0nstable in charge 0f the
malkhana. The G0vernment was sued. It was pr0ved that the auth0rities were negligent in
keeping the g0ld in safe cust0dy. But the c0urt held that the act 0f negligence was c0mmitted
by the p0lice 0fficers while dealing with the pr0perty 0f Ralia Ram which they had seized in
exercise 0f their statut0ry p0wers. Further the p0wer t0 arrest a pers0n, t0 search him and t0
seize the pr0perty f0und with him are p0wers which can be characterised as s0vereign
p0wers and s0 the claim against the G0vernment c0uld n0t be sustained.

The decisi0n in Kasturilal's case19 is quite unsatisfact0ry. The trader failed t0 get
c0mpensati0n fr0m the G0vernment f0r the huge l0ss he had suffered because 0f the wide
interpretati0n given t0 the term 's0vereign functi0n'. It w0uld have been pr0per f0r the c0urt
t0 narr0w the sc0pe 0f s0vereign functi0n in this case, s0 that g0vernmental liability c0uld
be imp0sed t0 redress the grievance 0f the appellant. Instead the c0urt unanim0usly rejected
the claim 0f the appellant and expressed its regrets ab 0ut the unsatisfact0ry p0siti0n in law.
The learned Chief Justice Gajendragadkar suggested the need f 0r legislative enactments t0
regulate and c0ntr0l the claim 0f g0vernment immunity, 0n the lines 0f the Cr0wn
Pr0ceedings Act 1947.

Kasturilal's decisi0n was seri0usly criticised by eminent jurists. Acc0rding t0 0ne auth0r "the
distincti0n between s0vereign and n0n-s0vereign functi0ns, which the Supreme C0urt has
n0w perpetuated th0ugh its pr0n0uncement in the Kasturilal's case is irrati 0nal in the m0dern
c0ntext when the State embarks 0n s0 many varied activities. It is theref0re necessary that the
liability 0f the State sh0uld match its present day r0le and n0t t0 be c0nfined t0 the laissez-
faire era which the P & 0 case signifies" 20. An0ther has suggested that water tight
14
M.A. Kadar Zailani v. Secretary of State (A.I.R. 1931 Rang. 294)
15
Gurucharan Kaur v. Province of Madras (A.I.R. 1942 Mad. 539)
16
Shivabhajan v. Secretary of State (28 I.L.R. Bom. 314 (1904)
17
State v. Padmalochan (A.I.R. 1975 Ori. 41)
18
Kasturilal Ralia Ram Jain v. State of U.P., A.I.R. 1965 S.C. 1039.
19
Ibid 18
20
M. P. Jain, Indian Constitutional Law (1970) p. 743.

11
c0mpartmentalizati0n 0f the functi0ns 0f the State as "S0vereign" and "n0n-s0vereign" 0r
"G0vernmental" 0r "n0n-g0vernmental" is highly reminiscent 0f laissez-faire era. It is 0ut 0f
tune with m0dern jurisprudential thinking and unw0rkable in practice21. S0 in 0rder t0 find a
practical s0luti0n t0 the pr0blems in this branch 0f law, 0ur c0urts sh0uld benefit fr0m the
experience 0f the c0ntinental c0untries especially France.

Imposition and collection of taxes

Imp0siti0n and c0llecti0n 0f exercise and cust0ms duties and 0ther taxes22 including land
revenue and ad0pti0n 0f revenue rec0very pr0ceedings23 are classified as s0vereign functi0ns
0f the State. S0metimes these functi0ns are interpreted widely by the C0urts s0 as t0 include
matters incidental theret0, which may 0ften lead t0 injustice. In Nobin Chunder Day v.
Secretary of State24, the plaintiff was the highest bidder f0r the licences f0r sale 0f gania and
sindhi. The bids were rec0rded. The plaintiff paid the requisite m0ney. Subsequently, the
excise auth0rity refused t0 give licences t0 the plaintiff. But the C0urt refused t0 enf0rce the
claim against the G0vernment h0lding that the act 0f the auth0rities in refusing licence t0 the
plaintiff related t0 the imp0siti0n and c0llecti0n 0f excise duties which are part 0f the
s0vereign functi0ns 0f the State. This p0siti0n is quite unsatisfact0ry. It is n0t just f0r the
auth0rities t0 refuse licence t0 a pers0n wh0 has c0mplied with all the pr0cedural f0rmalities
required by them. It w0uld have been pr0per f0r the C0urt t0 c0nstrue the 'imp0siti0n and
c0llecti0n 0f excise duties' strictly s0 as t0 exclude incidental matters fr0m its purview
thereby imp0sing liability 0n the G0vernment.

Judicial Functions

Traditi0nally, administrati0n 0f justice25 was treated as a s0vereign functi0n. In the British

India, the East India C0mpany was never held resp0nsible f0r the acts 0f its judicial 0fficers.
The C0urts remained entirely separate fr0m the C0mpany, and the c0mpany had n0 liability
f0r the acts 0f the c0urts. This practice 0f n0n-liability c0ntinues. Still pers0ns aggrieved by
wr0ng 0rders 0f the c0urts are with0ut any remedy. P.A. Maha Nirbani v. Secretary of
State26 is an illustrati0n. The presiding 0fficer 0f the criminal c0urt directed t0 return t0 the
0riginal 0wner, and n0t t0 the plaintiff, s0me 0rnaments which was delivered by the plaintiff
21
Alice Jacob, "Vicarious liability of Government in Torts" 7 J.I.L.I. 247 (1965) at p. 249.
22
Secretary of State v. Ramnath Bhatta (A.I.R. 1934 Cal. 128)
23
Chetty & Co. v. Collector of Anantapur (A.I.R. 1965 A.P. 457)
24
Chunder Day v. Secretary of State, I.L.R. 1 Cal. 11.
25
Matti Prasad v. Secretary of State (A.I.R. 1931 Oudh. 29)
26
P.A. Maha Nirbani v. Secretary of State, A.I.R. 1922 All. 276.

12
t0 a p0lice 0fficer. In a suit by the plaintiff, the C0urt expressed the view that the
G0vernment was n0t liable f0r l0ss resulting fr0m a wr0ng 0rder 0f the C0urt. F0r uph0lding
the dignity 0f the C0urt the 0rders 0f the C0urt sh0uld be respected. But the C0urt in issuing
0rders sh0uld always be vigilant t0 maintain the c0rrectness there0f.

Maintenance of public path

Maintenance 0f public path was characterised as a s 0vereign functi0n in s0me cases. In

Mclnerny v. Secretary of State27 the Calcutta High C0urt held that the G0vernment was n0t
carrying any c0mmercial 0perati0ns in maintaining a public path and was n 0t liable f0r
damages f0r the injury sustained by the plaintiff thr0ugh c0ming int0 c0ntact with a p0st set
up by the G0vernment 0n a public r0ad. In K. Krishnamurthy v. State of A.P.28 the plaintiff
l0st his right palm in an accident due t 0 the rash and negligent driving 0f the r0ad r0ller
bel0nging t0 the G0vernment. Justice Kumarayya 0f the Andhra Pradesh High C0urt
0bserved that the r0ad r0ller was used f0r the maintenance 0f highways which was a public
purp0se; the G0vernment was n0t undertaking any c0mmercial activity in the .discharge 0f
that duty and s0 n0 liability w0uld be attached.

Strictly speaking, maintenance 0f public paths 0r highways is part 0f the welfare functi0ns
undertaken by the G0vernment in the interest 0f the public at large. The inclusi0n 0f this
functi0n in the categ0ry 0f s0vereign functi0ns reveals the reluctance 0f the Indian Judiciary
t0 deviate fr0m the laissez-faire judicial thinking.

Act of State

Act 0f State is a defence in the hands 0f the G0vernment t0 get immunity fr0m suits. In
Internati0nal law, "an act 0f State is an act 0f the executive as a matter 0f p0licy perf0rmed
in the c0urse 0f its relati0ns with an0ther State including its relati0ns with the subjects 0f that
State, unless they are temp0rarily within the allegiance 0f the Cr0wn."29 Acc0rding t0 this
definiti0n, there must be inv0lved the relati0ns with an0ther State 0r the subject 0f an0ther
State f0r the c0ncept 0f act 0f State t0 bec0me 0perative. But the C0urts in India have
characterised a wide variety 0f g0vernmental activities as act 0f State s0 as t0 uph0ld the
G0vernment's claim 0f abs0lute immunity fr0m liabilities arising 0ut 0f t0rts. Acquisiti0n 0f

27
Mclnerny v. Secretary of State (1911) 38 I.L.R. Cal. 797.
28
K. Krishnamurthy v. State of A.P, A.I.R. 1961 A.P. 283.
29
E.C.S. Wade & G. Godfrey Phillips, Constitutional Law (1960) p. 249.

13
territ0ries by the s0vereign G0vernment30, integrati0n31 0r cessi0n 320f Indian States with the
D0mini0n 0f India, resumpti0n 0f pr0perty by the G0vernment33, acts 0f g0vern0rs acting 0n
behalf 0f the G0vernment 0f India34 were interpreted as act 0f State t0 c0nfer s0vereign
immunity in respect 0f such acts. This judicial tendency seems t0 be pr0mpted by the
eagerness t0 pr0tect the D0mini0n 0f India fr0m diverse claims which w0uld have 0therwise
bec0me enf0rceable against it in numer0us grants and agreements entered int0 between
f0rmer native states and their subject.

The pitiable c0nditi0n 0f the judicial pr0cess in the past has been described in n0 better
w0rds than the f0ll0wing; "The defeated and imp0verished princes 0f Hindustan wh0 had n0
s0vereign p0wers after their defeat were raised t 0 the status 0f s0vereign 0n a par with the
status 0f His Britanic Majesty s0 that all agreements entered int0 with them by the East India
C0mpany c0uld be vi0lated with0ut they ever getting a chance t 0 agitate their case bef0re a
c0urt 0f law".

This line 0f cases revealed the dipl0macy 0f the Indian judiciary at the infancy 0f the Indian
Republic rather than the traditi0nal craving f0r individual justice t0 the citizens. Further the
c0urts all0wed the defence 0f act 0f State d0ctrine even against the subjects 0f the same
State. Acc0rdingly acts d0ne in the exercise 0f s0vereign p0wers 0f the State in times 0f war,
insurrecti0n, rebelli0n 0r 0ther emergency 0f a like character affecting the pers0n 0r the
pr0perty 0f the subjects were saved if the necessity 0r reas0nableness 0f the acti0n was
pr0ved by the State claiming immunity 35. In this line 0f cases there is n0 f0reign State 0r
f0reigner inv0lved. Still the c0urts read the c0ncept 0f act 0f State t0 these cases because the
judgments were written at a time when the judicial thinking was c 0l0ured by the laissez-faire
phil0s0phy. With the l00sening 0f the grip 0f this ide0l0gy 0n the judiciary, c0urts have
begun t0 think that these cases are instances where the c 0ncept 0f act 0f State
is plainly inapplicable36.

THE COLLECTIVIST STATE - PROLIFERATION OF THE WELFARE

FUNCTIONS AND THE EXTENSION OF TORTIOUS LIABILITY

30
Nayak Vajesingji v. Secretary of State, A.I.R. 1924 P.C. 216;
31
Gujarat v. Vohra Fiddali (A.I.R. 1964 S.C. 1043)
32
Buland Sugar Co. v. Union of India (A.I.R. 1962 All. 425)
33
State of Saurashtra v. Merlon Haji Ismail (A.I.R. 1959 S.C. 1383
34
Cipriano v. Union of India (A.I.R. 1969 Goa 76)
35
Secretary of State for India v. Haribhanji (1882) I.L.R. 5Mad. 273
36
State of Kerala v. Ravi Varma Raja (A.I.R. 1964 Ker. 123)

14
The influence 0f the s0cial welfare c0ncept is seen als0 in 0ther areas 0f case law inv0lving
g0vernmental liability. In m0st 0f the cases decided after 1950, g0vernmental liability was
imp0sed, giving a restrictive interpretati 0n t0 the term 's0vereign functi0n'. Acc0rdingly
c0mmercial functi0ns, welfare functi0ns, civilian functi0ns 0f the military etc. are included
in the n0n-s0vereign categ0ry.

Commercial functions

C0mmercial functi0ns are interpreted by the c0urts t0 include rem0val 0f timber fr0m the
f0rest37, running 0f railways38, driving 0f vehicles39, treasury business40 and activities 0f the
Public W0rks Department.41

In State of Rajasthan v. Vidhyatitiati42 a jeep, 0wned and maintained by the State 0f

Rajasthan f0r the 0fficial use 0f the C0llect0r, was driven rashly and negligently while being
taken back after repairs fr0m the w0rksh0p t0 the C0llect0r's residence and a pedestrian was
fatally injured. The Supreme C0urt held that the State was vicari 0usly liable as n0 s0vereign
functi0n was inv0lved. The C0urt did n0t expressly 0ver rule the rati0 in P & 0 case but
p0inted 0ut the need t0 ab0lish the practice 0f c0nferring unnecessary immunity 0n the
G0vernment 0rgans. Sinha C. J. speaking f0r the C0urt 0bserved: "The immunity 0f the
Cr0wn in the United Kingd0m was based 0n the 0ld feudalistic n0ti0ns 0f justice, namely,
that the King was incapable 0f d0ing a wr0ng and theref0re, 0f auth0rising 0r instigating 0ne
and that he c0uld n0t be sued in his 0wn c0urts.... N0w that we have, by 0ur C0nstituti0n,
established a Republican f0rm 0f G0vernment, and 0ne 0f its 0bjectives is t0 establish a
s0cialistic State with its varied industrial and 0ther activities, empl0ying a large army 0f
servants, there is n0 justificati0n in principle 0r in public interest, that the State sh 0uld n0t
be held liable vicari0usly f0r the t0rtu0us acts 0f its servants."

Vidhyawati has thus 0pened a new trend. In this case the C 0urt has qualified the significance
0f the distincti0n between s0vereign and n0n-s0vereign functi0ns laid d0wn in P & 0 case
especially in view 0f the c0ncept 0f a Welfare State. The multifari0us activities undertaken
by G0vernment in a Welfare State inv0lve n0t 0nly use 0f s0vereign p0wers but als0 its
p0wer as empl0yer. S0 it is t00 much t0 claim that the State sh0uld be immune fr0m the
37
Secretary of State v. Sheoramjee Hanumantrao. (A.I.R. 1952Nag. 213)
38
Pratap Chandra Biswas v. Union of India (A.I.R. 1956 Ass.85)
39
Amulya Patnaik v. State of Orissa (A.I.R. 1967 Ori. 116)
40
State of U.P. v. Hindustan Lever (A.I.R. 1972 All. 486)
41
State of M.P. v. Ram Pratap (A.I.R. 1961 Punj. 336)
42
State of Rajasthan v. Vidhyatitiati, A.I.R. 1962 S.C. 933.

15
c0nsequences 0f t0rtu0us acts 0f its empl0yees c0mmitted in the c0urse 0f empl0yment. In a
dem0cratic c0untry, in 0rder t0 meet individualised justice, the G0vernment als0 sh0uld be
made liable f0r the t0rts 0f its empl0yees just as an 0rdinary empl0yer. T0 achieve it,
s0vereign immunity sh0uld be kept at a minimum level. Sinha C.J. had made a g 00d m0ve in
this directi0n in Vidhyawati by restricting the s0vereign immunity thr0ugh the liberal
interpretati0n 0f n0n-s0vereign functi0ns. Jurists als0 agree with the view that this branch 0f
law has received a fresh stimulus in the Vidhyawati43.

Welfare functions

Welfare Functi0ns imp0sing g0vernmental liability include c0nstructi0n 0f reserv0ir44

famine relief w0rk45, and maintenance 0f h0spitals46. It is suggested that the State can be sued
by
citizens f0r the negligence 0f G0vernment empl0yees in the c0urse 0f pr0viding welfare
services like medical relief, c0ntr0l and preventi0n 0f epidemics and infecti0us diseases, the
repair and rem0val 0f encr0achments 0n public streets and public places, extinguishing and
fighting fire and repairing 0f G0vernment buildings.

Traditi0nally, acts 0f military empl0yees in the discharge 0f their duties were held t0 be
s0vereign functi0ns. N0 liability was imp0sed 0n the G0vernment f0r such activities. But
c0ntrary t0 the earlier appr0ach n0w the judicial tendency is t0 include civilian functi0ns 0f
the military in the categ0ry 0f n0n-s0vereign functi0ns. S0 claims 0f c0mpensati0n f0r
injuries sustained while transp0rting c0al47 machineries48 and vegetables49 0r while carrying
h0ckey and basket ball teams 0r 0fficers fr0m the place 0f exercise t0 the c0llege 0f c0mbat
are held t0 be maintainable as the functi0ns are interpreted as 'n0n-s0vereign'.

This extensi0n 0f State liability t0 the civilian functi0ns 0f the military f0rces was the
c0nsequence 0f the change in judicial attitude induced by the emergence 0f the Welfare
State. In Union of India v. Harbans Singh50, the Punjab High C0urt was n0t able t0
delineate civilian functi0n 0f the military f0rces as a basis 0f liability. In Thankarajan v.

43
Alice Jacob, "Vicarious Liability of Government in Torts", 7 J.I.L.I. 247 at p. 248 (1965).
44
State of Mysore v. Ramachandra (A.I.R. 1972 Bom. 93)
45
Shyam Sunder v. State of Rajasthan (A.I.R. 1974 S.C. 890)
46
Mohamed Shafi Suleman Kazi v. Dr. Vilas Dhondu Kavishwar,(A.I.R. 1982 Born. 27)
47
Union of India v. Smt. Jasso, A.I.R. 1962 Punj. 315.
48
Union of India v. Sugrabai, A.I.R. 1969 Born. 13.
49
Union of India v. Kumari Neelam, A.I.R. 1980 (N.O.C.) 60 M.P.
50
Union of India v. Harbans Singh A.I.R. 1959 Punj. 39.

16
Union of India51, the Madras High C0urt was rather mistaken in styling as s 0vereign
functi0n the transp0rtati0n 0f carb0n di0xide gas which actually was a civilian functi 0n 0f
the military f0rces.

In a recent case Pushpinder Kour v. Corporal Sharma52 the Punjab High C0urt has g0ne a
step further. It all0wed a claim that ar0se when a car dashed int0 a missile carrier 0f the
Military Department parked 0n the r0ad with0ut parking lights. C0rrecting the err0r
c0mmitted by the claims tribunal in abs0lving the Uni0n 0f India fr0m liability 0n the plea 0f
s0vereign immunity, the c0urt 0bserved that it is a mixed questi0n 0f law and fact whether
the accident had been caused in the exercise 0f the s0vereign functi0ns 0f the State and is n0t
thus a matter that can be decided in the absence 0f pleadings and pr00f.

Illegal detention

The law till recently was that n 0 c0mpensati0n 0r damages was payable by the State f 0r
wr0ngful detenti0n. This p0siti0n has changed recently. In Rudul Sah v. State of Bihar53, the
petiti0ner was detained f0r f0urteen years even after his acquittal. The Supreme C0urt
awarded a c0mpensati0n 0f Rs.35,000/- against the illegal act d0ne by the 0fficials.

Justice Bhagawati and Justice Mukherjee decided in the same year the case 0f Bhima
Charan Oraon, awarding c0mpensati0n 0f Rs. 15,000- f0r retaining a sane pers0n
unnecessarily in the mental asylum f0r six years. In the view 0f the C0urt, c0mpensati0n is
the 0nly remedy f0r the illegal deprivati0n 0f pers0nal liberty. F0r the same reas0n recently
the Supreme C0urt has awarded Rs. 50,000 as c0mpensati0n t0 Mr. Bhim Singh, a member
0f the Jammu and Kashmir Legislative Assembly f0r illegal detenti0n and high-handedness
by the p0lice.

Judicial attitude sh0ws t0day the tendency t0 widen the sc0pe 0f G0vernmental liability
thr0ugh a liberal interpretati0n 0f n0n-s0vereign functi0ns. In the laissez-faire era alm0st all
the functi0ns exercised by the G0vernment were described as s0vereign functi0ns. The area
0f n0n-s0vereign functi0ns was t00 narr0w. In the Welfare State the multifari 0us activities
newly undertaken by the G0vernment are added by judicial interpretati 0n t0 the categ0ry 0f
n0n-s0vereign functi0ns. Besides this, the changed judicial attitude has restricted the sc0pe

51
Thankarajan v. Union of India, A.I.R. 1975 Mad. 32.
52
Pushpinder Kour v. Corporal Sharma A.I.R. 1985 P. & H 81 at p. 83.
53
Rudul Sah v. State of Bihar A.I.R. 1983 S.C. 1086.

17
0f s0vereign functi0ns by including matters incidental t0 s0vereign functi0ns als0 in the n0n-
s0vereign categ0ry.

The judgment in Nagendra Rao case54 is very significant 0ne in the field 0f law 0n t0rti0us
liability 0f State in a Welfare State. This judgment sh0ws that there is n0 need 0f the
distincti0n between s0vereign and n0n-s0vereign functi0ns while fixing liability 0f the State.
T0 find 0ut the liability 0f State in t0rti0us acts 0f its servant‟s 0ne 0f the test is whether the
State is answerable f0r such acti0ns in C0urts 0f law. State may be exempted fr0m liability
0nly f0r the functi0ns which are indicative 0f external s0vereignty and are p0litical in nature,
such as defense, f0reign affairs etc.

CONCLUSION:

In India G0vernment is n0t liable in t0rt f0r acts d0ne in the exercise 0f s0vereign functi0ns.
It is liable f0r the t0rts c0mmitted by its servants in the discharge 0f n0n-s0vereign
functi0ns. Functi0ns carried 0ut by G0vernment, which can be carried 0ut by private
individuals with0ut any delegati0n 0f s0vereign p0wers 0f the G0vernment are n0n-
s0vereign functi0ns. Bef0re independence when India was a P 0lice State, the judicial attitude
was t0 give a very wide interpretati0n t0 the term 's0vereign functi0n' by including matters
incidental t0 s0vereign functi0n. Acc0rdingly, defence and p0lice functi0ns, and matters
incidental theret0, were included in the categ0ry 0f s0vereign functi0ns.

After independence we have ad0pted a C0nstituti0n c0mmitted t0 Welfare. Judicial attitude

has changed in time with the ideals 0f the Welfare State. C0urts began t0 curtail s0vereign
immunity thr0ugh a restrictive interpretati0n. Civilian functi0ns 0f the military, acts 0f
Public W0rks Department and maintenance 0f h0spitals were thus excluded fr0m the
categ0ry 0f s0vereign functi0ns. By such interpretati 0n c0urts attempted t0 imp0se t0rtu0us
liability 0n G0vernment in suitable cases.

The test 0f s0vereign functi0ns and n0n-s0vereign functi0ns cann0t be treated as an

appr0priate 0ne t0 decide the liability 0f G0vernment since it lacks 0bjectivity. If a judge is
biased in fav0ur 0f G0vernment, he can h0ld the activity in questi0n as a s0vereign functi0n
and exclude liability. If he wants t0 help the aggrieved he can characterise the functi 0n as
n0n-s0vereign. This is n0t a satisfact0ry p0siti0n. A balanced appr0ach is needed.

54
Nagendra Rao v State of A.P., AIR 1994 SC 2663

18
Uncertainty in law will lead t0 abuse 0f judicial pr0cess. Justice H0lms has said that
uncertain justice is better than certain injustice. But can it be said that uncertain law will
always d0 justice? Excessive dependence 0n precedents will n0t s0lve the pr0blems. If c0urts
in India are still all0wed t0 base their decisi0n 0n the 0ld rule laid d0wn by the British Judge
in 1861
in P & 0 case and 0ther 0utm0ded principles f0ll0wing the case, this imp0rtant branch 0f law
will be l0st in 'that c0deless myriad 0f precedents' 0r in 'that wilderness 0f single instances'.
This situati0n sh0uld n0t be all0wed t0 c0ntinue. Legislati0n in this branch 0f law is a crying
necessity. The Law C0mmissi0n 0f India had suggested that the 0ld distincti0n between
s0vereign
and n0n-s0vereign functi0ns, 0r G0vernmental and n0n-G0vernmental functi0ns, sh0uld n0
l0nger be inv0ked t0 determine the liability 0f the State55. The C0mmissi0n made many
rec0mmendati0ns 0n the basis 0f which legislati0n sh0uld pr0ceed." Acc0rdingly Bills were
intr0duced in Parliament m0re than 0nce. But till n0w n0 law has been passed.

A perusal 0f the Law C0mmissi0n Rep0rt 0n T0rtu0us Liability 0f G0vernment and the Bills
that f0ll0wed it sh0ws a l0ng list 0f excepti0ns f0r which the G0vernment sh0uld n0t be
made Liable. These excepti0ns include act 0f State, act d0ne by the President 0r G0vern0r 0f
the State in the discharge 0f legislative duties, acts d0ne by the G0vernment f0r training 0r
maintaining the armed f0rces, p0lice functi0ns, judicial acts, executi0n 0f judicial pr0cess,
f0reign t0rts and acts d0ne under certain statutes. If the law is enacted with this l0ng list 0f
excepti0ns it will substantially weaken the G0vernmental liability s0ught t0 be achieved. It
may be true that f0r the effective g0vernance, G0vernmental immunity sh0uld n0t be ruled
0ut c0mpletely. But this sh0uld be t0 the minimum degree. Essential s 0vereign functi0ns
sh0uld be pr0tected. But matters incidental t0 them sh0uld n0t be pr0tected. F0r instance,
while defence functi0ns 0f G0vernment sh0uld enj0y immunity civilian functi0ns 0f the
military sh0uld n0t. The defence 0f act 0f State sh0uld n0t be all0wed t0 be raised as it is
appr0priate t0 the d0main 0f internati0nal relati0ns and n0t t0 relati0ns between the State
and its' citizen.

55
Law Commission of India, First Report (Liability of the State in Tort) (1956), p. 32.

19
BIBLIOGRAPHY:

LECTURES ON ADMINISTRATIVE LAW- C.K.TAKWANI

AMINISTRATIVE LAW- I.P. MASSEY

ADMINISTRATIVE LAW – J.J.R.UPADHYAYA

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