I Year B.B.A., LL. B (Div.

-C) – Semester-I (2023)

1st -Internal Assessment – LAW OF TORTS

ESSAY WRITING

Topic
DEVELOPMENT OF GOVERNMENT
LIABILITY IN INDIA

NAME: YASH PUROHIT

DIVISION: C

PRN: 23010126212

COURSE: BBA LL.B. (H)

BATCH: 2023-2028
 DEVELOPMENT OF
GOVERNMENT LIABILITY IN
INDIA

INTRODUCTION –

The current government and geo-political scenario puts India into an age where we are going
to witness heavy privatization and disinvestment by the government, for example, the sale of
Air India to TATA, and many more, while on the other hand government keeps on providing
essential services the definition of statutory function is becoming more and more vague, Also
the poor quality of public service delivery poses and quintessential question Infront of us –
WHEN CAN WE HELD GOVERNMENT LIABLE IN TORTS? AND WHEN WE
CANNOT? This is the question of STATUTORY LIABILITY or GOVERNMENT
LIABILITY, This is why It is essential to study the current state of government liability in
India and how it got here from common law.

This concept that the state cannot be held liable was developed from the common law which at
that time believed that 1“RES NON-PROTEST PECARE”, This maxim meant the king cannot
do any wrong, as the king was considered as the son of the god and the supreme harbinger of
justice, Also seen in the maxim 2“REX IS LEX” which meant king is law, from this it could be
inferred that the king cannot be wrong and if he cannot be wrong then how could he even be
held liable, this is what led to the formation of the principle of statutory liability, which said
the state cannot be held liable. But as time passed and democracy replaced monarchy we saw
many changes in the principle of statutory liability, from absolute no liability to a scope of
liability was introduced in acts that were not sovereign in nature, as it started to provide

1
Borchard, E. M. (1924). Government Liability in Tort. The Yale Law Journal, 34(1), 1–45.
https://doi.org/10.2307/788496
2
Borchard, E. M. (1925). Government liability in tort. American Law Review, 59(4), 527-591.
sovereign immunity to the state instead of absolute exemption. As the world changes we
witness more and more changes to the concept.

HISTORY OF STATUTORY LIABILITY IN INDIA –

Even before independence in India, there was scope for the people of India to sue the
government, under Article 176 of the Government of India Act, where rights were vested to
the Indians to sue the British government in India though as we know they were irrelevant
because the core philosophy of British to rule not to provide justice, later after independence
our lawmakers were aware of the need to hold even government liable to make them
accountable, they vested these rights in article 300 of the Indian constitution, this article came
into effect in 1950.

Further, this principle was added with a filter of sovereign and non-sovereign functions, in
the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for
India. The concept of sovereign and non-sovereign functions was developed, According to
this principle the state could not be held liable if the damage was caused by carrying out a
sovereign function the state could not be held liable, The rationale behind this was that the
government needed to provide the basic amenities to the people and while doing this, it was
for the interest of the people themselves, so I would be unfair for the state to be held liable
and it will also lead to less productivity for the state resulting in further loss of the people of
the country.

The definition used for the sovereign function was, a function done by the government which
is necessary and can only be done by the state. This is where the scope of ambiguity arises A
definition was used where it was said that the functions could only be done by the
government, as time passed privatization led to the opening up of fields that were previously
exclusive to the government of India, so the fields which only government had monopoly was
minimal only fields like military and functions like maintenance of peace and scenarios of
war were considered as sovereign functions. And the scope for non-sovereign functions
increased hence the scope for holding the government liable also increased.

Later in the case of State of Rajasthan v. Vidyawati the Government of India was held
vicariously liable for the first time, It was held that under the constitution we have formed a
welfare state that not only engages itself in the maintenance of law and order but also engages
in trade and industry hence giving sovereign immunity to all is way too much exemption
from tort. The scope of sovereign function was again reduced.

Then in the case of 3Kasturi Lal Ralia Ram v. State of UP, the case comes as an anomaly in
our study as in this case, the government was able to escape liability based on sovereign
immunity, In this case, the point of question arises when a constable working in UP police
force steals the gold which was convicted by Kasturi Lal and runs away, Kasturi Lal files a
case against the state of UP, but because the police were doing a sovereign function, state of
UP escaped the liability, but later on, it could be said that this case was bypassed as the
supreme court put out rulings which were deviating from the ruling in Kasturi Lal without
directly referring or overruling the judgment of this case.

Further, in the case of Saheli v Commissioner of India, the decision was held against the
government, and the government was held liable, The rationale stated behind this was on the
basis of Article 21 regarding liberty of life and freedom.

This happens to be the current position of India where the scope of the exemption from
tortious liability for the government is very limited, the fundamental rights of citizens are put
above the scope of sovereign immunity in the modern age.

CONCLUSION –
4
The current condition of the government liability in India is at a very liberal state and most
definitively in consonance with the doctrine of equality and the maxim of lex is rex as today
government could be held liable and accountable for any damage it provides, it is a sign of
virtue from our judiciary and state to be able to understand the need for such rights and to
protect them, if not for this position the government could become draconian and harm its
citizens and there is no scope to hold the government liable. We are on the right path but still,
improvement is required and needed in this concept, This is why I would like to present a few
of my own suggestions to improve the concept of government liability even more.

3
MANU/SC/0086/1964
Kasturilal Ralia Ram Jain vs. State of Uttar Pradesh (29.09.1964 - SC) : MANU/SC/0086/1964
4
Ganguly, B. (1968). LIABILITY OF THE STATE IN MODERN INDIA. The Indian Journal of Political
Science, 29(4), 392–397. http://www.jstor.org/stable/41854297
In today's world where there is effectively nothing exclusive for the government to operate on
monopolistically except the maintenance of peace and order by maintaining security and the
rule of law, still, many welfare schemes are run by the government, and many obsolete
businesses are run by it, which lead to bad quality of delivery of public service, wasting the
taxpayer's money and resources while disintegrating the policies made by the government for
the benefit of the citizens, the condition of government schools, condition of any given office
of government filled with lazy employees asking people to move from one desk to another,
wasting their time and the whole productivity of the nation. One way to deal with this
problem lies within the concept of government liability If we can start holding these
government offices and departments liable for the loss in quality of public service delivery,
would lead to government and states forming even stricter guidelines for improving the
quality of work. This might seem like a far-fetched and dreamy concept, but looking at the
state for the bad public service delivery with them being liable in torts could prove to
efficient in today’s capitalistic world.
BIBLIOGRAPHY –

1. Borchard, E. M. (1924). Government Liability in Tort. The Yale Law Journal, 34(1),
1–45. https://doi.org/10.2307/788496

2. Borchard, E. M. (1925). Government liability in tort. American Law Review, 59(4),

527-591

1
3. MANU/SC/0086/1964 Kasturilal Ralia Ram Jain vs. State of Uttar Pradesh
(29.09.1964 - SC) : MANU/SC/0086/1964

4. Ganguly, B. (1968). LIABILITY OF THE STATE IN MODERN INDIA. The Indian Journal of Political
Science, 29(4), 392–397. http://www.jstor.org/stable/41854297
SCREEN SHOTS OF DATABASES REFERRED