PRESTIGE INSTITUTE OF

MANAGEMENT AND
RESEARCH

NAME YASH PATHAK

CLASS BALLB
SECTION “A”
SUBJECT Law of Torts 2

SUBMITTED TO SUBMITTED BY

MISS . ALISHA THOMAS YASH PATHAK

 TABLE OF CONTENT

1 . ABSTRACT

2 . INTRODUCTION

3 . TORTIOUS LIABILITY OF THE STATE

4 . CASE LAWS

5. CONCLUSION AND SUGGESTION

 acknowledgement

“I would like to express my thanks to the people who have helped me most
throughout my project. I am grateful to my teacher Alisha thomas for nonstop
support for the project. A special thank of mine goes to my colleague who helped
me out in completing the project, where they all exchanged their own interesting
ideas, thoughts and made this possible to complete my project with all accurate
information. I wish to thank my parents for their personal support or attention
who inspired me to go my own way. At last but not the least I want to thank my
friends who treasured me for my hard work and encouraged me and finally to
God who made all the things possible for me till the end.”

Sign.

DATE
 certificate

This is to certify that YASH PATHAK of BALLB has successfully completed the project work on
LAW OF TORTS for BALLB assignment of

the prestige institute of management and research in the year 2020. It is further certified that
this project is the individual work of the candidate.

Signature:

Date :

Thank you
ABSTRACT:
The paper talks about the liability of the state in tort under administrative law. he term
„administration‟ is used here synonymously with „state‟ or „Government‟. To what extend the
administration would be liable for the torts committed by its servants is a complex problem
especially in developing countries with ever widening State activities. The liability of the government
in tort is governed by the principles of public law inherited from British Common law and the
provisions of the Constitution. It mainly focuses on the recognition of the liability and providing
compensation compensation to the citizens especially by the judiciary in the event of legal injury.
The scope of the paper is limited to assessing the extent of tortious liability before the Constitution
and the gradual changes in judicial approach in post Constitutional era. The hypothesis mentioned is
the liability of the state is considered or not considered to be a tortious liability that undergoes
major changes and new dimensions of liability have been explored by the courts to afford remedies
and compensate the victims of state action. The paper deals about the tortious liability for the state
and it explains the pre-constitutional and post-constitutional judicial decisions with case laws and it
also explains the before commencement and after commencement of the constitution regarding the
sovereign and non-sovereign functions. Finally it deals with the doctrine of public accountability in
the field of judicial and personal liability in comparison with both English and Indian laws. It also
deals with the statute that bounds by the state, under that it includes the comparison with both
English and Indian laws.

INTRODUCTION:
Tortious Liability emerges from the breach of an obligation essentially settled by the law: this
obligation is towards persons by and large and its breach is redressible by an activity for unliquidated
damages.The torts submitted by people against another were perceived in custom based law and
the saying 'Ubi Jus Ibi Remedium' pushed the development of the Law of Torts more than ever.
Under the Roman law, the state was not liable in torts towards its subjects, since it was a Sovereign.
It was viewed as a characteristic of Sovereignty that a State couldn't be sued in its own courts
without its assent. So also, in England, the Crown delighted in insusceptibility from tortious liability
and the proverb 'The King can't take the blame no matter what' won. Neither a wrong could be
ascribed to the King or the Government nor might it be able to approve any off-base. In the post
constitutional time, the approach of Welfare State logic prompted the all overrunning State
mediation, diminishing the refinement amongst open and private capacities. The welfare measures
and orders duplicated and the probability to singular damage expanded. The State was in every way
that really matters an enterprise total along these lines making it a juristic person acting through its
authorities and operators suable under law. The courts made another open law cure which made the
State liable for wrongs perpetrated over the span of activity of non-sovereign capacities. The
insusceptibility was limited to the conventional elements of State like enactment, organization of
equity, war, making of settlements and wrongdoing anticipation. (Maguire 1916) The subject of
State Liability in torts has accepted extraordinary significance today. The very idea of welfare state
imagines that state deals with the natives and sets up an only connection between the privileges of
the individual and the obligations of the State. While these obligations have expanded, the
expansion in State exercises has prompted a more noteworthy effect on the subjects. Article 12 of
the Indian Constitution characterizes 'State'. As per this article, State Special Issue implies the Union,
the State government and the Local Authorities. Subsequently the state is both the supplier and
defender. The vicarious liability of state for the demonstrations of its workers, abuse of energy by
them or their carelessness expect importance especially with regards to extending extent of central
and lawful rights. This circumstance requires a satisfactory system for assurance of State liability and
granting remuneration to the casualty in the occasions of wrongs conferred against them. The
progression of the law in England through the Crown Proceedings Act 1947 and in USA
concretization by the Tort Claims Act, 1946 couldn't be overlooked in this regard. (Fairgrieve 2003)

TORTIOUS LIABILITY OF THE STATE.

Article 300 of the Constitution sets out the convoluted liability of Indian government. It peruses:
“The government of India may sue or be sued by the name of Union of India and the Government of
a State may sue or be sued by the name o the State and may, subject to any provisions which may be
made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred
by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding Provinces or the corresponding Indian States might have
sued or been sued if this Constitution had not been enacted.” This is anyway subject to any law
made by the Parliament or a State Legislature.

In this way this makes the liability co-end with that of East India Company in light of the fact that the
liability of the Dominion of India before the Constitution was same as that of Secretary of State for
India under section 176 of Government of India Act 1935 and the Government of India Act 1915
made the liability of the Secretary of State for India same as that of East India Company preceding
Government of India Act 1858. In this way the situation of the tortious liability was solidified at 1858
. The company administered in a double limit Commercial and Sovereign. When it started activities
in India, the company was absolutely a trade body. Bit by bit, it gained domains and furthermore the
sovereign powers to make war and peace and raise armed forces. Since it was an independent
company not being the hireling or specialist of the British Crown, the resistance delighted in by the
Crown was never reached out to it. In its sovereign limit, it was absolved from any tortious liability.
In accordance with this rule after autonomy, the invulnerability of the State proceeded in a few
regards i.e. sovereign powers. (Fairgrieve 2003)

The great instance of Peninsular and Oriental Steam Navigation Company V. Secretary of State
chose in pre-autonomy India features this perspective. For this situation the P and O Company made
a claim for damages for injuries caused to its steed by the negligence of some laborers at the
Government Kidarpur Dockyard. The Bombay High Court decided that the Secretary of State would
be at risk for damages if the negligence of the hirelings was, for example, would render a standard
boss at risk. The liability of the Company could emerge just in regard of its exchanging capacities in
exercise of non-sovereign forces. The upkeep of dockyard should be possible by a private individual
likewise and thus was a non-sovereign capacity. The scholarly judges opined that since the
advantages of the Crown never stretched out to the Company, it couldn't benefit sovereign
insusceptibility, however it practiced some sovereign capacities.

The control executed by this case was that in exercise of sovereign powers, the State might not be
at risk. Sovereign capacities implied those exercises which just the State could attempt; private
gatherings couldn't take up those exercises. e.g Railways, Armed Forces, Law and Order and so forth.
This lead has been liable to different elucidations and sometimes the courts have

tailed it truly while in some the judges have declined to incorporate certain capacities as sovereign,
despite the fact that lone the State could perform them.
In Secretary of State V. Moment the Privy Council held that a suit would lie against the government
for wrongful impedance with offended party's property all things considered a suit would have lain
against the East India Company under the decision of P and O case.

On account of Secretary of State V. Hari Bhanji, salt was being transported from Bombay to Madras
ports. Amid travel the obligation payable on salt was raised and the dealer was requested to pay the
upgraded obligation at goal. The sum was paid under challenge and later on a suit was document to
recoup the sum. The Madras High Court had two issues to consider.

1) Whether the State i.e. the litigant was a sovereign and could be sued in its own courts

2) What was the idea of the demonstration against which the help was being guaranteed.

The Court held that since the insusceptibility appreciated by the Crown did not reach out to East
India Company, the company was subject. Second the insusceptibility existed just for the
'Demonstrations of State' entirely purported. It was additionally said that the qualification amongst
sovereign and non-sovereign capacities was not a very much established one.

There is a distinction with regards to "Act of State" and the barrier of "Sovereign Immunity". The
previous streams from the idea of energy practiced by the State for which no action lies in common
court though the last was created on the celestial right of Kings. The adjustments in the sovereign
insusceptibility in England by means of the Crown Proceedings Act 1947 were not reached out to
India. Amid the encircling of the Indian Constitution, the subject of to what degree, assuming any,
was the Union of India or the State Governments at risk in tort was left for future enactment. The
Indian Law Commission in its first Report on Liability of State in Tort in 1956 had proposed such a law
because of the changed situation and Constitutional arrangements. Be that as it may, such
enactment has not been enacted by the

Parliament till now. It is asked why the Parliament has not enacted such an enactment of open
intrigue. The other line of cases has continued on the lines of refinement amongst sovereign and
non-sovereign capacities.

In Union of India V. Harbans Singh it was held that no damages could be recouped when a man was
murdered by rash and careless driving of a military truck by a military driver on obligation since it
was a sovereign capacity.

In Secretary of State V.Cockraft the offended party was harmed by the careless departing of a pile of
rock on a military street over which he was strolling. The suit against the government was not viable
in light of the fact that military and the upkeep of military streets were a sovereign and not a private
capacity.

PRE-CONSTITUTIONAL AND POST- CONSTITUTIONAL JUDICIAL DECISIONS

Pre-Constitution Judicial Decisions
• Peninsular and Oriental Steam Navigation Company v Secretary : (1861) 5 Bom HCR App The
guideline of this case holds that if any act was done in the activity of sovereign capacities, the East
India Company or the State would not be at risk. It drew a significant clear refinement between the
sovereign and non-sovereign elements of the state.

• Secretary of State v. Hari Bhanji : ILR (1882) 5 Madras 273 For this situation, the Madras High
Court held that State invulnerability was kept to acts of State. In the P and O Case, the decision did
not go past acts of State, while giving representations of circumstances where the invulnerability
was accessible.

Post Constitution Judicial Decisions :

• State of Haryana v. Santra 2000 (1) CPJ 53 (SC) The proportion of this case was on the
standards of state liability for negligence. Here it was obviously settled that the specialist while
playing out the task was acting as a government hireling and acting over the span of work of the
government. Henceforth when there was negligence, it added up to acting in lacking honesty, thus
the protection of sovereign resistance couldn't be utilized by the state. In addition it was additionally
held that such negligence which could have been seen by a professional who had an obligation to do
as such should think about these issues and can't escape liability by asserting guard of assent by the
solicitor.

• State of Rajasthan v. Vidyawati : AIR 1962 SC 933 The respondents documented a suit for the
damages made by a representative of a State and the case addressed whether the State was at risk
for the tortious act of its hireling – The Court held that the liability of the State in regard of the
tortious act by its worker inside the extent of his business and working in that capacity was like that
of some other manager. Held: State ought to be as much at risk for tort in regard of convoluted acts
conferred by its hireling inside the extent of his work and working all things considered, as some
other business.

Kasturilal v. State of UP: AIR 1965 S.C 1039 The decision for this situation was given holding that the
act, which offered ascend to the present claim for damages, has been submitted by the
representative of the respondent over the span of its business. Likewise, that work had a place with
a class of sovereign power. This evacuated any liability with respect to the state. For this situation,
the offended party had been captured by the cops on a doubt of having stolen property. Upon
examination, an extensive amount of gold was found and was seized under the arrangements of the
Code of Criminal Procedure. At last, he was discharged, yet the gold was not returned, as the Head
Constable accountable for the maalkhana, where the said gold had been put away, had fled with the
gold. The offended party immediately brought a suit against the State of UP for the arrival of the
gold or on the other hand, for damages for the misfortune caused to him. It was found by the courts
beneath, that the concerned cops had neglected to take the essential care of the gold seized from
the offended party, as gave by the UP Police Regulations.

BEFORE COMMENCEMENT AND AFTER COMMENCEMENT OF THE

CONSTITUTION
The Doctrine of Vicarious Liability depends on 'social comfort and unpleasant equity'.

English law: – in England, under precedent-based law, outright insusceptibility of the Crown was
acknowledged couldn't be sued in tort for wrongs conferred by its hirelings in their business. The
administer depended on the notable maxim "the King can't be blamed under any circumstance". In
1863, in Tobin v. R. the court watched "if the Crown were at risk in tort, the rule (the King can't take
the blame no matter what) might have appeared to be insignificant". Be that as it may, with the
expansion of governmental capacities, the invulnerability stood to the Crown in convoluted liability
turned out to be inconsistent with the requests of equity.

In Adams v. Naylor the Dicey gave a crazy illustration. "On the off chance that the Queen were
herself to shoot the P.M through the head, no court in England could take comprehension of act".
The significance of maxim would signify "king has no lawful energy to do wrongs." But the English
Law never prevailing with regards to recognizing the King's two limits individual political. The time
had come to nullify the general resistance of the crown in tort and in 1947 the Crown Proceeding Act
was enacted. This Act put the Government in an indistinguishable position from a private person.

Indian Law: a. General - So far as Indian law is concerned, the maxim 'the king can't be blamed
under any circumstance' was never completely acknowledged. Total insusceptibility of the
Government was not perceived in the Indian lawful framework preceding the commencement of
Constitution and in various cases the Government was held subject for convoluted acts of its
workers.

b. Established Provision - Under Article 294 (4) of the constitution, the liability of Union
Government or a state Government may emerge 'out of any contract or something else. The word
generally recommends that the said liability may emerge in regards of convoluted acts too. Under
article 300 (1), the degree of such liability is settled. It gives that the liability of the Union of India or
State
Government will be same as that of Dominion of India and the Provision before the commencement
of the Constitution.

c. Sovereign and Non-sovereign powers - (a) Before commencement of Constitution : The

English law as to resistance of the Government for convoluted acts of its hirelings is somewhat
acknowledged in India. The High Court saw: when in doubt this is valid, for it is a trait of sovereignty
and widespread law that a state can't be utilized as its very own part courts without its assent.' Thus
a refinement is tried to be made between 'sovereign capacities' and 'non-sovereign elements' of the
state. The State isn't at risk in tort.

d. After commencement of Constitution - In state of Rajasthan v. Vidhyawati , a jeep was

possessed by the Rajasthan for the official utilization of the authority of a locale. The jeep driver
bringing back the workshop after repairs. By careless driving of jeep a person on foot was thumped
down. He kicked the bucket and his significant other sued the driver and the state for damages. A
constitution Bench of Supreme Court held the State vicarious subject for the rash and careless act of
the driver.

The court held that the manage of resistance in light of the English law had no legitimacy in India.
After the foundation of the Republican type of Government under the Constitution there was no
defense on a basic level or openly intrigues that the state ought not held at risk for vicariously for
the convoluted acts of its hirelings.

DOCTRINE OF PUBLIC ACCOUNTABILITY

The idea of open responsibility involves imperative open concern. All the three organs of the
government-lawmaking body, official and legal are liable to open responsibility.

a. Doctrine Explained: It is settled law that every single optional power must be practiced
sensibly and in bigger open intrigue. In Henley v. Lyme Corporation Best C.J stated: – "Now I take it
to be impeccably clear, that if an open officer, manhandle his office, either by an act of exclusion or
commission and the outcome of that is damage to an individual an action might be kept up against
such open officer."

In different cases, the Supreme Court has connected the above guideline by giving fitting alleviation
to wronged parties or by guiding the defaulter to pay damages, remuneration or expenses to the
individual who has endured. Recently in Arvind datttaraya v. State of Maharashtra, the Supreme
Court put aside request of exchange of an open officer watching that the action was not taken in
broad daylight interests but rather was an instance of exploited of a fair officer. 'it is most tragic that
the Government cripple the officers who release their genuinely and tirelessly and brings the people
enjoying dark promoting and contra banding alcohol."

b. Personal liability: - A rupture of obligation gives ascend out in the open law to liability which
is known as "misfeasance in broad daylight office". Exercise of energy by priest and open officers
must be for open merchandise and to accomplish welfare of open on the loose. Wherever there is
mishandle of energy by an individual, he can be held obligated.

In Common Cause, a Registered Society v. Association of India the oil Minister made distribution of
oil pumps subjectively for his relatives and companions. Subduing the action, the Supreme Court
guided the Minister to fifty lakh rupees as model damages to open exchequer and fifty thousand
rupees towards costs.

In is presented that in Lucknow improvement Authority v. M.K Gupta, the Supreme Court
appropriately stated: – When the court coordinates the installment of damages or pay against the
state a definitive sufferer is the regular man. It is the 'citizens' cash which is paid for inaction of the
individuals who are endowed under the act to release the individuals who are under the act to
release their obligations as per law. It is in this manner vital that the Commission when it is fulfilled
that a protestation is qualified for remuneration mental desolation or persecution, which finding
ought to be recorded painstakingly on material and persuading condition and not daintily, it
additionally coordinate the division worried to pay the sum to the objection from the general
population subsidize instantly. In any case, in the meantime, personal liability ought to be forced on
failing officers simply in the wake of pulling out and bearing sensible chance of hearing.

C. Judicial responsibility: The teaching of open responsibility applies to legal also. A fundamental
necessity of equity is that equity is that it ought to be apportioned as fast as would be prudent. It has
been properly stated: "Equity postponed is equity is equity denied." Delay in transfer of cases can be
suggested. While remarks and feedback of judicial working on issues of standards, sound guides for
elucidation and change, the working of the court in connection to a specific continuing isn't
admissible.
 RECOMMENDATION AND CONCLUSION:

All actions of state and its instrumentalities must be toward the targets set out in the constitution.
Each progression of government ought to be toward fair conventions, social and financial
improvement and open welfare. The established court practices energy of judicial survey with
limitation to guarantee that the experts on whom such power is endowed under the lead of law
practice is truly, equitably and for the reason for which it is planned to be worked out. Sovereign
insusceptibility as a safeguard might have been, consequently, never accessible where the State was
engaged with business or private undertaking nor it is accessible where its officers are blameworthy
of meddling with life and freedom of a native not justified by law. In both such encroachments the
State is vicariously subject and bound, naturally, legitimately and ethically, to remunerate and repay
the wronged individual. The teaching of sovereign invulnerability has no importance in the present
day setting when the idea of sovereignty itself has experienced radical change. 'Sovereignty' and
"acts of State" are in this manner two unique ideas. The previous vests in a man or body which is
free and preeminent both remotely and inside while last might be act done by a delegate of
sovereign inside the points of confinement of energy vested in him which can't be addressed in a
Municipal Court. The idea of energy which the Company delighted in was appointment of the "act of
State". An activity of political power by the State or its delegate does not outfit any reason for action
for documenting a suit for damages or pay against the State for negligence of its officers. The old
and ancient idea of sovereignty along these lines does not survive. Sovereignty currently vests in the
general population. The governing body, the official and the legal have been made and constituted
to serve the general population. In fact the idea of sovereignty in the Austinian sense, that king was
the wellspring of law and the wellspring of equity, was never forced in the sense it was
comprehended in England upon our nation by the British rulers. No edified framework can allow an
official to play with the general population of its nation and claim that it is qualified for act in any
way as it is sovereign. The idea of open intrigue has changed with basic change in the general public.
More than that for over hundred years, the law of vicarious liability of the State for negligence of its
officers has been swinging from one course to other. Consequence of the sum total of what this has
been vulnerability of law, increase of suit, misuse of cash of basic man and vitality and time of the
courts. Government of Torts Claims Act was enacted in America in 1946. Crown Proceedings Act was
enacted in England in 1947.
 BIBLIOGRAPHY

1. Peebles, K.A. (2011). "Negligent hiring and the information age: How state legislatures can save
employers from inevitable liability". William & Mary Law Review. 53: 1397. Retrieved 6
September 2017.
2. ^ "Lister v. the Romford Ice and Cold Storage Co. Ltd". Internet Archive. Retrieved 6
September 2017.
3. ^ Your Name (this will appear with your post). "Vicarious Conclusion". Canadianunderwriter.ca.
Retrieved 2013-10-05.

• H Laski, 'Basis of Vicarious Liability' (1916) 26 Yale Law Journal 105

• Department of Trade & Industry. Company Law Review: Attribution of Liability (PDF)