MODULE III

All persons have the capacity to sue and be sued but this is subject to certain modifications with
regards to certain categories of persons.

CONVICT
 A convicted person, in spite of his imprisonment, retains all civil rights which are not taken
away expressly or by necessary implication.
 The conviction and sentence by a court and rules of prison discipline curtail the liberty of
a convict, but subject to that curtailment, the courts remain the ultimate custodians of his rights
and liberties in the same manner as they are in respect of other citizens.( though the
conviction takes away the liberty and freedom of the convict, but even then the court guards
their rights and liberties like any other citizen )
 A convict can, therefore, under English law, sue for wrongs to his person and property like
any other citizen. Indian law is the same. “Convicts are not, by mere reason of the conviction,
deprived of all the fundamental rights which they otherwise possess.
 a prisoner or even a convict is entitled to the precious right guaranteed by Article 21
of the Constitution that he shall not be deprived of his life or personal liberty except
according to procedure established by law. (*Dk Basu v. State of Bengal 1997)

 A convict can, therefore, sue in tort for the vindication of his right which is invaded by a
tortious act committed by another. He can thus sue for battery or assault if the prison
authorities apply undue force (*R. v. Deputy governor of Pankhurt Prison 1990)

 A convict was attacked by another convict and killed due to the failure of prison authorities
to protect him, in a petition filed under the Article 32 they were awarded 100,000 in
compensation for violation of fundamental right under article 21. The state has higher
responsibility in respect to person in custody to ensure that they are not deprived of their
right to life
(*Smt. Keval pati v. State of UP 1995)

 The three rights which are of utmost importance

 The right of access to a court
 the right of access to legal advice
 the right to communicate confidentially with a legal advisor under the seal of legal
professional privilege.
 Such rights may be curtailed only by clear and express words, and then only to the
extent reasonably.

 On imprisonment the right to move freely and the right to practice profession is curtailed
but the other rights like right to hold property etc. cannot be curtailed.
 Further the convicted person is not deprived of other fundamental rights like right to
freedom of speech

APPLICABLE ARTICLES
1. ARTICLE 20 – protection in respect of conviction of offences
2. ARTICLE 21- right to life
3. ARTICLE 22- protection against arrest and detention in certain cases

CASES
1. R. V. DEPUTY GOVERNOR OF PANKHURT PRISON
- Hague was a prisoner serving a sentence at Parkhurst prison. The deputy governor of Parkhurst
transferred him to the Wormwood Scrubs prison. The deputy then ordered that Hague should be
segregated from other prisoners. The 1964 Prison Rules did not permit him to make this order,
meaning that the segregation was unlawful. The Prison Rules exist pursuant to s.47(1) of the Prison
Act 1954 which states that:
‘The Secretary of State may make rules for the regulation and management of prisons, remand
centres, detention centres and Borstal institutions respectively, and for the classification, treatment,
employment, discipline and control of persons required to be detained therein.’

Hague successfully brought an action for judicial review of the decision to segregate him. He then
sued for damages under the tort of false imprisonment and for breach of statutory duty.
 It was thus justified under this case that a prisoner can sue for violation of these rights

2. SMT. KEWAL PATI V. STATE OF UP

Introduction
The case of Kewal Pati vs the State of UP was decided by the Supreme Court of India in the
matters regarding whether the death of a person in custody is entitled to have fundamental rights of
right to life or not. The court makes it clear that taking away one’s life is violative of right to life
under Article 21 of the Indian Constitution even though he is a prisoner is being discussed in this
case.
Background of the Case

It is now a mandate that the prisoners are also entitled to Right to Life under Article 21 of the
Indian Constitution even though they are under custody. The torture, assault, death in custody
imposed on the prisoners is a violation of fundamental right under Article 21 of the Indian
Constitution. The police authorities must ensure the safety of their jail prisoners. The state also must
protect the rights of the prisoners even when they are lodged in jail and are undergoing incarceration.

Facts
1. The deceased, Ramjit Upadhyaya was sentenced with life imprisonment under Section 302 of
Indian Penal Code (IPC) in Central Jail at Varanasi. The punishment for murder under section
302 is given either by death or imprisonment for life along with fine.
2. Happy, another accused charged of the same offense (murder) as Ramjit, was also sentenced
in the same jail as Ramjit.
3. Ramjit was working as a Nambardar and his work was to maintain discipline among the
prisoners in the jail.
4. Happy could not tolerate the behavior of Ramjit as a Nambardar since he was strict in his
behavior and hence attacked and killed him.
5. A case was registered under section 303 of IPC against Happu for murdering Ramjit. (Section
303 of IPC – If a person under life imprisonment commits murder shall be punished with
death).
6. The deceased Ramjit is survived by his wife and three children. His death has deprived his
wife and children of his company and affection.
7. The wife of the deceased and her children filed a petition against the Government of Uttar
Pradesh claiming compensation on legal and humanitarian grounds.
Issues
1. Whether the deceased, Ramjit is entitled to Right to Life even as a prisoner?
2. Whether his wife is entitled to get compensation?
Judgment
1. Every person, whether convict or not is provided with the fundamental rights of right to
life under Article 21 of the Indian Constitution. Hence, Ramjit too had this right.
2. Due to the negligence of the respondent authorities, the life of the deceased (Ramjit) could not
be protected and he was deprived of his Right to Life. Hence it is mandatory to compensate
the petitioner for the loss that she and her family suffered.
 3. It was directed to the State of UP to deposit a sum of Rs 100000 within three months from the
date of judgment with the Registrar of the court.
4. From this amount of Rs 100000, a sum of Rs 50,000 shall be deposited in fixed deposit in any
nationalized bank and the interest of it shall be paid to the wife and the three children.
5. The remaining amount shall be paid to the wife by the Registrar after the satisfaction of the
petitioner’s identification.

3. DK BASU V. STATE OF BENGAL 1997

DK Basu was the Executive Chairman of Legal Aid Services, West Bengal, a non-political
organization. He addressed a letter to the Supreme Court of India drawing the courts attention to a
piece of news published in various newspapers about deaths in police custody and lockups.
In the letter, it was mentioned that such crimes of custodial violence always went unpunished despite
the efforts made and urged the courts to look into the matter so that the family members of the victims
are given some form of compensation. He requested that the letter be treated as a Writ Petition within
the “Public Interest Litigation” category.
Considering the significance of the issues brought up in the letter, it was treated as a written petition
and the defendants were informed.
Issues
Ø Whether there is an increase in the cases of custodial death and violence?
Ø Whether there is a need for guidelines for arrest and custody of detenu?
Ø Whether the police officers be held liable for custodial death and violence?
Ø Whether custodial death and violence amounts to violation of Article 21 of the detenu?

Judgment
The Supreme Court referred to the case of Neelabati Bahera v. State of Orissa AIR 1993 SC
1960 and reiterated that prisoners and detainees should not be deprived of their Fundamental Rights
under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of their
Fundamental Rights.
The Apex Court further laid down the following guidelines and said that arrest and detention will be
subject to the guidelines. The violation of these guidelines would attract not only the departmental
action but also the contempt of court proceedings in a High Court having the jurisdiction over the
matter.
The DK Basu case is regarded as the most landmark case of the criminal jurisprudence. The
guidelines laid down in the case have been incorporated in the Criminal Procedure Code, 1973 by the
Code of Criminal Procedure (Amendment) Act, 2008 (w.e.f. 1/11/2010).

4. Neelabati Behra v. state of orissa 1933

FACTS:

 In the instant case, a letter was sent by Smt. Nilabati Behera to the Supreme Court stated that her
twenty-two-year-old son, Suman Behera had died in police custody after being inflicted with
several injuries.
 The honorable court took suo moto action and converted it into a writ petition under Article 32 of
the Indian constitution.
 The petitioner claimed compensation for the violation of her son’s fundamental right to life
guaranteed under Article 21.
  The Orissa police had arrested Suman Behara for investigation involving the offence of theft and
he was detained at the police outpost.
 The very next day, his dead body was found near the railway track. The lacerations on his body
indicated an unnatural death.
 The admitted facts are, that Suman Behera was taken into police custody on 1.12.1987 at 8 a.m.
and he was found dead the next day on the railway track near the Police Outpost Jeraikela, without
being released from custody, and his death was unnaturally caused by multiple injuries sustained
by him.
 The burden is, therefore, clearly on the respondents to explain how Suman Behera sustained those
injuries which caused his death.

JUDGEMENT

 he court observed through the facts and pieces of evidence of the case with arguments of both the
counsels that there was no cogent evidence of any search by the police to find Suman Behara and
of his escape from police custody.
 The police also reached out much later to take charge of the body, after it was reported by
railwaymen, which raised questions as to its credibility. Further, a doctor before the court deposed
that the injury was caused by a blunt object, which may have been lathi blows.
 All the injuries found on his body could not have been caused by a train accident. The court also
drew the distinction between the liabilities of the State in public law as opposed to private law.
 It clearly mentioned that a proceeding under Article 32 before the Supreme Court or any High
Court is a remedy available in public law and the principle of sovereign immunity does not apply
in the case of public law. It is only a defense in private law based on tort.
 It also stressed that it would be highly unjust to expect a person socio-economically disadvantaged
person to pursue ordinary civil proceedings under private law. And the Apex Court held the
Petitioner awarded compensation of Rs.1,50,000 and a sum of Rs.10,000 to be paid to the
Supreme Court Legal Aid Committee.
 The Supreme Court also ordered the State of Orissa to initiate criminal proceedings against those
who killed Suman Behara.

5. Mithu etc etc v. state of Punjab 1983

FACTS OF THE CASE

The factual matrix, the petitioners in this case challenged the constitutionality of Section 303.
According to the petitions, Section 303 is completely arbitrary and illogical, and as a result, it violates
both Article 21 and Article 14 of the Constitution. It was contended that this part is unlawful since the
process by which the depravation of life is authorised in it is unfair and unjust.

If the accused commits another heinous crime after serving their sentence of life in prison, their sole
options for punishment are the death penalty, the death penalty with a minimum 10-year sentence, or
life in prison.

In this case a person commits the offence of murder when he was in jail he gets the punishment of
mandatory death penalty. This case was brought before the Supreme Court of India.

JUDGEMENT

The Honorable court held that Section 303 of Penal Code violates the guarantee of equality contained
in Article 14 as also the right conferred by Article 21 of the Constitution that “no person shall be
deprived of his life or personal liberty except according to procedure established by law”. The clause
was initially intended to prevent life imprisonment prisoners from attacking prison employees, but the
Legislature picked language that went well beyond that goal.
The court made the point that murders might be committed for a variety of motives, such as hate, lust,
sex, envy, gain, retaliation, etc., and that none of them had anything to do with receiving a life
sentence in prison.

The court also pointed out- “There is no comparable statistical data in our country in regard to the
behaviour of life convicts who are released on parole or bail but there is no reason to assume that the
incidence of murders committed by such persons is unduly high. Indeed, if there is no scientific
investigation on this point in our country, there is no basis for treating such persons differently from
others who commit murders.”

The court emphasised that there are around 51 sections of the IPC that allow for life imprisonment,
making the required death sentence while serving a life imprisonment is illogical. Even if a person
receives a life imprisonment under section 467 for forgery, breach of trust, or counterfeiting a coin, he
will still be required to receive a mandatory death sentence under this section if he kills someone.
There will be no consideration given to the fact that the two offences have nothing in common. Both
offences would have different motivations. Therefore, the court held that “to prescribe a mandatory
sentence of death for the second of such offences for the reason that the offender was under the
sentence of life imprisonment for the first of such offences is arbitrary beyond the bounds

6. State of Ap v. Challa ramkrishna reddy 1990

Challa Ramakrishna Reddy and his four other brothers as also his mother filed a suit against the State
of Andhra Pradesh claiming a sum of Rs. 10 lacs as damages on account of the negligence of the
defendant which had resulted in the death of Challa Chinnappa Reddy.

7. Charles sohrabji v. superintendent jail tihar

8. Francis Coralie Mullin vs The Administrator, Union 1981

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an
Order dated 23rd November 1979 issued under Section 3 of the COFEPOSA Act[1]. The Petitioner
filed a petition in the Court for a writ of habeas corpus challenging her detention, but by a judgment
delivered by the Court on 27th February 1980, her petition was rejected with the result that she
continued to remain under detention in the Tihar Central Jail. Hence it was necessary for her to
consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in
order to arrange an interview, he was required to obtain a prior appointment from the District
Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer
nominated by the Collector of Customs. This procedure for obtaining an interview caused
considerable hardship and inconvenience and there were occasions when, even after obtaining prior
appointment from the District Magistrate, her lawyer could not have an interview with her because no
Customs Officer nominated by the Collector of Customs remained present at the appointed time. The
petitioner was thus effectively denied the facility of an interview with her lawyer and even her young
daughter, 5 years old, could not meet her except once in a month as per Section 3(b)(ii). She was
detained on attempting to smuggle hashish out of the country and hence for her defence, interview
with her lawyer was of extreme importance.
ALIEN ENEMY
 An alien enemy is meant a person of enemy nationality or a person residing in or
carrying on business in enemy territory, whatever his nationality.
 Alien enemies residing in India with the permission of the Central Government, and
alien friends, may sue in any court otherwise competent to try the suit, as if they were
citizens of India, but alien enemies residing in India without such permission, or
residing in a foreign country, shall not sue in any such Court.
 Every person residing in a foreign country, the Government of which is at war
with India and carrying on business in that country without a licence on that
behalf granted by the Central Government is deemed to be an alien enemy
residing in a foreign country

HUSBAND & WIFE

 The common law relating to married women suffered from serious anomalies. A married
woman could not sue for any tort committed by a third person unless her husband joined
with her as plaintiff.
 She could also not be sued for a tort committed by her unless her husband was made a
defendant.
 Further, she could not sue her husband and the husband could not sue her for any tort
committed by one against the other.
 Now, by Married women’s property act, of 1825 and law reform (married women and
tortfeasors) act 1935, a married woman can sue for any tort committed by third person and
can also be sued for any doubt committed by her without joining her husband who cannot
be made liable or meet party to a suit simply because he is the husband.

 Law reforms act 1962, each of the parties to a marriage has the same right of action in tort
against the other as if they were not married but the court has a discretion to stay the
proceedings to prevent them from using it as a forum for trivial domestic disputes. (The
aforesaid anomalies removed by legislation resulted from the doctrine of the common law
that marital status made the husband and wife one person in the eye of law, a doctrine which
was used to reduce the wife to a subordinate position).

 Marvels little status of Hindus Buddhist sikhs jains and Muslims in India is governed by
personal laws and not by common laws. Neither does marriage under these personal laws
affect the capacity to sue or be sued not does it confer any protection to any of the spouses
for any tortious act committed by one against the other. In church versus church 1983 the
legal position appeared to be that marriage has no effect on the rights and liabilities of either
of the spouses in respect to any thought

 Therefore, it is ascertained that marriage has no effect on the rights and liabilities of the
individual in respect of tort committed by either of them or a third party. The husband and
wife can also sue each other for the tort committed by them.
 The wife can sue for tort committed against her without joining hands with the husband.
 The spouses can also be sued individually by a third party.
CORPORATION
A Corporation is a legal person. It may like the State Bank of India, a University or a Metropolitan
Council be created by an Act of the legislature; or it may like a company be created under an Act
of the legislature. The common features of Corporations are a name, perpetuity of existence and
capacity to sue and be sued.

A Corporation cannot bring a suit for torts:

• wrongs which are only against living persons, eg, wrongful imprisonment
• tort committed essentially against its shareholders or employees unless the tort has also
some impact on the governance or business or property of the Corporations

A Corporation can sue for torts committed against itself:

• can sue for malicious presentation
• libel charging it with insolvency or with dishonest or incompetent management.
• an action for slander without proof of special damage, where the words are calculated to injure its
reputation in relation to its trade or business.

A corporation is liable for torts committed by its agents or servants to the same extent as a principal
is liable for the torts of his agent or an employer for the torts of his servant when the tort is committed
in the course of doing an act which is within the scope of the powers of the corporation . It may
thus be liable for assault, false imprisonment, trespass, conversion, libel or negligence.

a company may be held liable for the fault of an employee acting in the course of employment
even though the employee acted contrary to the orders of the company or with a corrupt
purpose. It is now settled that a corporation is liable for wrongs even of malice and fraud. A
corporation, therefore, may be sued for malicious prosecution or for deceit.

A corporation which is created by a statute is subject only to the liabilities which the Legislature
intended to impose upon it. The liability must be determined upon a true interpretation of the statute
under which it is created.

A foreign corporation may sue and be sued for a tort, like any other corporation (Campbell v.
Paddington corporation 1911) A multinational corporation having subsidiaries in different
countries and owning controlling shares in the subsidiaries may be held liable for a tort committed
by a subsidiary company by piercing the veil of incorporation on the reason that the parent
company constitutes the directing mind and will of the subsidiary company. (UCC v. Union of
India 1988)

9. Campbell v. Paddington Corpn. 1911

In this case, the plaintiff had bought a house and then rented the top 3 floors for people to view the
processions and parades that would pass, the corpn. Then erected a stand outside the house and
thus people stopped coming to the plaintiff house to view the parade and thus he filed a case. The
court ruled that the corporation could not erect a structure in front of the plaintiff house and was
aksed to pay compensation for the same.

10. UCC v. union of India

Facts of the case : In 1934, Union Carbide India Ltd (UCIL) was consolidated in India. It
manufactured chemicals, batteries, and pesticides. In 1970, in Bhopal, Madhya Pradesh, UCIL
established a pesticide plant. On the night of 2-3rd December 1984,very toxic methyl isocyanate
(MIC) leaked from the plant. Although no official death count was undertaken, it is estimated that
while the casualities were about 20000, the number of people who suffered unrecoverable
physical damage was about 60000.
UCC was a MNC registered in the USA which was held liable by Seth J of Madhya Pradesh for
the Bhopal gas tragedy that which resulted in the leakage of the harmful gas from the union
carbide india ltd. Plant which was a subsidiary to the UCC.

TRADE UNIONS
Indian Law expressly provides that every registered Trade Union shall be a body corporate with
all attributes of a legal personality. Section 18 of the Act, however, enacts that no suit shall lie
against a registered Trade Union, its members or officers in respect of any act done in
contemplation or furtherance of a trade dispute to which a member of the Trade Union was a
party on the ground only that such act induces some other person to break a contract of
employment, or that it is an interference with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or labor as he wills.
INSOLVENT
Liability for a tort committed by an insolvent is not a debt provable in insolvency and is not
discharged by insolvency. But an insolvent may be sued for a tort committed by him either before
or during insolvency, and if a decree is obtained against him, the amount awarded is a debt provable
in insolvency. A right of action in respect of a tort resulting in injury exclusively to the insolvent's
property passes to the Official Assignee or Receiver for the benefit of his creditors. But a right of
action in respect of a tort exclusively to the person, reputation or feelings of the insolvent, such as
an assault or defamation, seduction of a servant, remains with the insolvent, and the Official
Assignee or Receiver cannot intercept the proceeds so far as they are required for the maintenance
of the insolvent or his family.
Where a tort causes injury both to the person and property of the insolvent, the right of action will be
split and will pass, so far as it relates to the property, to the Official Assignee or Receiver, and will
remain in the insolvent so far as it relates to his person. 79 In such a case either the cause of action is
divided between him and the trustee or they may join together in one action in which case damages
will be assessed under two separate heads.

STATE AND ITS SUBORDINATES

King can do no wrong.
 means, first, whatever is exceptionable in the conduct of public affairs is not to be imputed
to the King, nor is he answerable for it personally to his people: for this doctrine would
totally destroy the constitutional independence of the Crown; and,
 secondly, that the prerogative of the Crown extends not to do any injury.
 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. only the actual
wrongdoer could be sued in his personal capacity. Liability in tort also extends to breach by
the Crown of a statutory duty. It is also no defence for the Crown that the tort was
committed by its servants in the course of performing or purporting to perform functions
entrusted to them by any rule of the common law or by statute.
 Crown is vicariously liable for torts committed by its servants in the course of their
employment if committed in circumstances which would render a private employer liable.

Constitution of India which reads : “The Government of India may sue or be sued by the name of
the 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 an 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. It may be mentioned that the Heads of State,i.e., the President of India, and the Governors
of States have personal immunity and they are not answerable to any court, as provided in Article
361, for the exercise and performance of the powers and duties of their offices.

The Union of India and the States of the Union are juristic persons and they can sue and be sued but
the extent of their liability by the chain of Constitution Acts beginning with the Act of 1858 and
ending with the Constitution is the same as was of the Secretary of State for India in Council under
section 65 of the Act of 1858 and the words in that section “all persons and bodies politic
shall and may have and take the same suits, remedies and proceedings, and legal equitable as
they could have done against the said Company” by incorporation apply to the Union and the
States as they applied to the East India Company. (*case regarding section 65 of the
constitution- Peninsular and oriental steam navigation v. secretary of state india 1861)

Sovereign Immunity
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
(*kasturilal v. state of UP 1965)
(*state of rajasthan v. vidyawati 1962)

Public Law Wrongs

the defence of sovereign immunity is not available when the State or its officers acting in the
course of employment infringe a person's fundamental right of life and personal liberty as
guaranteed by Article 21 of the Constitution.

Limitations of Sovereign Immunity

The sovereign functions within which the immunity of the State survives in an ordinary tort action
are also vague. But there can be no doubt in respect of certain matters. Trading and commercial
activities of the State, for example running of railways, 4 are outside the scope of sovereign
functions. It must also be noticed that the State cannot succeed in pleading its immunity by merely
showing that the tort was committed by its servants in the course of discharge of statutory functions.
“The statutory functions must be referable to the traditional concept of Government activity in which
the exercise of the sovereign power was involved.

Foreign Sovereigns
In India as provided in s. 86 of the Code of Civil Procedure a foreign State cannot be sued except
with the consent of the Central Government certified in writing by a Secretary to that Government. A
tenant of immovable property can, however, sue without such consent the foreign State from whom
he holds or claims to hold the property. Consent to sue cannot be given unless it appears to the
Central Government that the foreign State: (a) has instituted a suit in the court against the person
desiring to sue it, or (b) by itself or another, trades within the local limits of the jurisdiction of the court,
or (c) is in possession of immovable property situate within those limits and is to be sued with
reference to such property or for money charged thereon, or (d) has expressly or impliedly waived
the privilege accorded to it. The immunity under section 86 also covers foreign corporations which
are state owned and are like government departments even though they carry on commercial or
trading activities.Having regard to the modern trend of taking a restricted view of State immunity
the Supreme Court has ruled that consent to sue should generally be granted if conditions
mentioned in the section are satisfied.
English
Old :
Sovereign immunity act (1978):
• acts done bcz of statutory authority
• acts done by virtue of trade
• act or omission cause death or personal injury
• acts arising out of ownership, possession and use of property
• proceedings for anything done in relation to the armed forces of a state
Crown Proceedings act 1947
Nothing in this act authorising proceedings in tort against the crown in its Pvt capacity. the crown
can be subject to such liabilities in tort to which if it were a person of full age and capacity it
would be subject to the condition :
 • that the tort was committed by its servant or agent, which gave rise to a cause of action
• there is a breach of a duty which a person owes to his servant
• there is a breach of a duty attached to the ownership, control and possession of the
property `

India
CPC- s84, s86, s87A :
• s87A def of foreign states and rulers
• s86 suits against foreign rulers, ambassadors, and envoys
• s65(1858) all persons and bodies shall be and take the same suit remedy and proceedings
legal and equitable against the secretary of state of India as they could have done against
the said company
• Peninsular and Oriental steam navigation company vs Secretary of State of India(1861)
• chief justice peacock said that the defendant would be liable for injury and the principle
affirmed in determining the question of whether the East India Company would be liable in
its role as the sovereign in the maxim that the king can do no wrong is not applicable. The
East India Company is not a sovereign. The parties to the case where the servant of the
company to whom the sovereign powers were dedicated and who traded in their own
account for their own benefit and were engaged in a transaction partly for the purpose of the
govt and partly on their own account and which can also be carried on by Pvt individuals.
There is a clear distinction between the acts done with the express authority of the sovereign
and Pvt acts done without express authority.
• Kasturi Lal vs State of UP

CASES for sovereign immunity

(more or less use these cases for most concepts in this topic)

• Katurilal v. state of UP 1965

Facts Of The Case:

1. Kasturi Lal Ralia Ram Jain was a partner of the firm who is the appellant and the one who
dealt with selling jewellery in Amritsar. Kasturi Lal Ralia Ram Jain arrived at Meerut with his
aim to sell gold and silver there.

2. He was taken into custody by three police constables on suspicion of being in possession of
Stolen property.

3. Properties seized from him included:

Gold, weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers,
and was kept in the police malkhana.

4. few days later on 21 September 1947, Kasturi Lal was released on bail and after some time,
only the silver that was seized by the police officers and kept in the maalkhana was returned to
him, not the gold.

5. Ralia ram Then made repeated requests and demands for the return of the gold that was seized
from him but he could not recover the gold from the police officers.

6. Being unsuccessful in getting back the gold he then filed the suit against the respondent, on
the Decree to the board that the items that had been seized from him should be either:

a. returned to him or the alternative

 b. its value should be ordered to be paid to him with interest.

7. The Claim thus made by him consisted of Rs.11,075-10-0 As the price of gold and Rs.335 as
interest by the way of damages as well as future interest.

8. The respondent resisted the claim and contended that they were not liable to return either to
gold or pay the value of the gold with interest.

9. Respondent claimed that Mohammad Aamir who was the head constable of the malkhana
which he was in charge of went to Pakistan with gold and some other cash that he had stolen
on 17 October 1947.

10. Police did try and act against Mohammed Amir but nothing effective could be done despite
the best efforts put in by the police department. hence the respondent claimed that they could
not be held guilty

The supreme court decided on the matter and decided that the act was
done by the police officers in the exercise of their sovereign powers. The
court held that it was negligent on the part of the respondents' employee
but the employee himself was discharging his sovereign powers. The
power to arrest a person, to search him, and seize his property are powers
conferred on the police officers by statute as sovereign powers. hence The
state was held to be not liable.

Conclusion:
Sovereign immunity originated in court decisions. The doctrine of
sovereign immunity initially had been explained on the grounds that "the
king could do no wrong" but this is not valid and acceptable in today's day
and age and what all that happened to Kasturi Lal ralia Ram was not fair.
Though there were disapproval of the principles of Kasturi Lal in a
number of cases this case is pure injustice and unfair by refusing damages
to victims solely because of the status of the wrongdoer.

• State of rajasthan v. Vidyawati 1963

FACTS OF THE CASE

1. Lokumal was a temporary employee of the State of Rajasthan, as a motor driver on

probation. In February 1952, he was employed as the driver of a Government jeep car,
registered as No. RUM 49, under the Collector of Udaipur. The said car was given for
necessary repairs at a workshop.
2. After the repairs were finished, Lokumal, while driving the car back along a public
road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was
walking on the footpath by the said of the public road in Udaipur city, causing him
multiple injuries, including fractures of the skull and backbone, resulting in his death
three days later, in the hospital where he had been removed for treatment.
3. The plaintiffs who are Jagdishlal’s widow, Vidyawati and a minor daughter, aged three
years, through her mother as next friend sued the said Lokumal and the State of
Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs.
25,000/- from both the defendants.
4. The suit was majorly contested by the state of Rajasthan, i.e. defendant no. 2 and
defendant no. 1, Lokumal, remained ex parte. The present suit has been contended
before the Hon’ble Supreme Court, by the State of Rajasthan, as the appellant on the
ground that it was not liable for the tortious act of its employee.

CONCLUSION AND DECISION

The position of law, obtaining both prior and subsequent to 1858, the
position obtaining under Article 300 of the Constitution and the facts and
 circumstances leading to the formation of the State of Rajasthan, were all
reviewed by the Supreme Court in State of Rajasthan v. Vidyawati, The
act of the driver was not an act in the exercise of a sovereign function. The
Court said that the employment of driver of a jeep car for the use of a civil
servant was an activity which was not connected in any manner with the
sovereign power of the State at all. In this case, court rejected the plea of
immunity of the State and held that the State was liable for the tortious act
of the driver like any other employer.

• Peninsular and oriental steam navigation v. secretary of state for india

• In the course of their employment, a servant of the plaintiff Company was
travelling from Garden Beach in Calcutta in an exceeding carriage pulled by a pair
of horses belonging to the plaintiff and driven by the coachman. While the bus was
travelling by Kidderpore Dockyard, which may be a government dockyard
overseen by the Superintendent of Marine, certain government employees were
riveting a piece of iron funnel casing. It weighed around 300 kilogrammes, was
eight or nine feet long, and stood about two feet tall. The lads carrying the cargo
walked along the centre of the road. The coachman issued a warning to the
youngsters carrying the iron. The lads sought to induce their way out of the way,
those ahead trying to go to one side, and those behind attempted to travel to the
opposite side. As a result of this, you lost time, which caused the carriage to stop
for them, even though they had left the centre of the road.
• They were startled by the carriage’s proximity and abruptly dropped the iron and
ran. The iron landed with a respectable clap, which roused the aggrieved party’s
ponies, who rushed forward savagely and fell on the iron, injuring at least one
pony. The action was launched by the injured party Company to recuperate Rs.
350/ – due to the injury, and the lawsuit against the Secretary of State was
afterwards brought on the basis that a government worker concluded the
irresponsible exhibition.

Judgment

The plaintiffs contend that the Secretary of State was given the benefit of the doubt. Furthermore, the
East India Company was not the sovereign, although having some royal powers granted to them, and
hence could not claim immunity in every instance.
MINOR
The normal age of majority in India is 18 years, but if a guardian is appointed before that age by a
court or property is taken under superintendence by a court of wards, the age of majority is 21
years.
The criminal law confers immunity on minors of tender years; a child below 7 years cannot at all be
held liable for any offence, and a child between the ages of 7 and 12 is not liable unless he had
attained sufficient maturity to judge the nature and consequence of his conduct on the occasion. As
regards contracts a minor is incompetent to contract and an agreement entered into with him is void.
The law of torts makes no special provision for minors.
A minor can sue for all torts committed against him like any other person except that he has to
bring his suit through a next friend. The preponderance of authority now is that a minor can also
sue for pre-natal injuries ( * montreal tramways v. leveille 1933) The difficulty, that at the time the
injury is inflicted, there is no legal person, for the fetus is not a legal person is met either by holding
that the cause of action arises on the birth of the child who is deformed or by fictionally attributing
personality to the fetus as is done in cases where a posthumous child is held entitled to claim under
the Fatal Accidents Act,Workmen's Compensation Act71 or under a Will 72 in accordance with the
maxim Nasciturus pro jam nato habetur .

a deformed child cannot claim damages either under the Act or under general law when the
deformity resulted because of an infectious disease suffered by the mother during pregnancy and
the fault of the doctor was in not advising the mother of the desirability of abortion for although the
doctor owed a duty to the mother to advise her of the infection and its potential and serious effects
and on the desirability of the abortion in those circumstances, it did not follow that the doctor was
under legal obligation to the fetus to terminate its life or that a fetus had a legal right to die; such a
claim for ‘wrongful life’ would be contrary to public policy as a violation of sanctity of human life.

No protection but age taken into account

A minor enjoys no special protection in a suit filed against him for a tortious act. But his age has to
be taken into account when any mental element such as intention, malice or negligence on his part
is relevant for deciding his liability. (*tillander v. Gosselin 1967) A minor is liable like any adult for
tortious acts. For example in the case of a violent assault and battery on a harmless man, the act in
itself is sufficient to support the cause of action and the wrongdoer, even if a minor, is liable. Infants
are liable for wrongs of omission as well as for wrongs of commission. Thus infants are held liable
for assault, false imprisonment, libel, slander seduction, trespass, wrongful detention of goods, 88
 fraud, embezzling money, and for nuisance and injuries to their neighbours, arising from the
negligent use and management of their property. (*mullins v. Richards 1998)

No liability in tort from void agreement

A minor's agreement is void even if he fraudulently represents himself to be of full age 1 and so he
cannot be made to repay a loan so obtained by changing the form of action to one for deceit. But he
can be compelled to specific restitution, when that is possible, of property obtained by false
representation provided it is identifiable and still in his possession or control. Although an infant is
liable for a tort, yet an action grounded on contract cannot be changed into an action of tort.
Thus, an infant was held not liable for overriding a mare which he had hired, 6 or for unskilfully driving
a motor-car and damaging it.

Liability of parent.— A father or a guardian is not responsible for the torts of the minor. But the
circumstances of a case may be such as to constitute the child the servant for the time being of the
father, in which case the father may be liable as a master for the acts, neglect and default of his child,
as when he sends out his son on some business with his cart and horse, and the son causes injury
by negligence in driving. A father may also be liable for his own personal negligence in allowing
his child an opportunity of committing a wrong, as when he supplies his son with an air-gun or
allows him to remain in possession of it after complaints of mischief caused by the use of the gun,
and the boy afterwards accidentally wounds a person.
(Bee bee Vs Sales (1916) 32 TL4 413
• Donaldson Vs Mic Niven (1952) 96 SJ 747)

UCC v. Union of India

- That those who were yet unborn at the time of the Bhopal gas tragedy and are able to
show congenital defects which are traceable to the leak will be entitled to be
compensated. A girl born after the leak and dies 4 month later due to the inhalation of
gas by the mother will be allowed 1.5 lac compensation by the supreme court.

Montreal tramways v. leveille 1933

This trial concerned an injury in a newborn child which was allegedly caused by an accident
involving the mother during her pregnancy. The trial is widely accepted as a turning-point in law
related to fetal injury, conferring the right of a child to claim compensation at birth for injuries
inflicted during pregnancy. (*find the proper facts of the case)

Tillander v. gossalin 1967

Facts - In Tillander v. Gosselin, the defendant a child aged 3 dragged another child of same age for
several feet and caused grievous injuries but as his intention and negligence on his part could not
be proved because of his tender age, he was not held liable.
Facts: Infant D dragged 1 week baby out of crib for 100 feet, fractured her skull & caused brain
damage
Issue: can an infant be held liable for damages for negligence?
Decision: no liability on the infant
Rule: someone of this age cannot be considered to have sufficient judgement/voluntary action to
exercise reasonable care
Reasoning: Under CC S.12, no child under 7 can be guilty of negligence s
Issue- can a child of this age be held liable for such an act?
Decision – no liability on the child
Reason – the child does not have the mental maturity to understand the concequences of their
actions

Mullins v. Richards 1998

Facts
The defendant was a 15-year-old girl who play-fought with rulers with another 15-year-old girl (the
claimant). In the course of the game, the defendant’s ruler snapped, causing a splinter to hit the
claimant in the eye, blinding her. The claimant sued the defendant in the tort of negligence for her
injuries.

Issues
Establishing the tort of negligence involves establishing that the defendant owed the claimant a duty
of care, which they breached in a manner which caused the claimant recoverable harm. To establish a
breach of any duty owed, the claimant must establish that the defendant failed to act as a reasonable
person would in their position. Normally, the reasonable person is an objective standard which does
not incorporate the particular characteristics of the defendants (such as their clumsy nature). The case
law has established some exceptions to this rule, however.

The issue in this case was whether the defendant’s age could be taken into account when determining
how the reasonable person would have acted in her situation.

Decision / Outcome
The Court of Appeal held that the defendant was not in breach of the duty of care she owed to the
claimant.

This case established the principle that the defendant’s identity as a child is relevant to the standard of
care: a child is only to be held to the standard of a reasonable child of the same age, and not to the
standard of a reasonable adult.

In this case, a reasonable 15-year-old would not have foreseen any injury arising from the pair’s
game, and so would not have taken any additional steps to safeguard the claimant from harm.
Accordingly, the defendant acted as a reasonable child would, and was not in breach.

Bee bee v. sales 1916

Donaldson v. mic niveb 1952

LUNATIC
Insanity is a good defence in Criminal Law when at the time of the commission of the crime, the
accused by reason of unsoundness of mind was incapable of knowing the nature of his act or that
what he was doing was either wrong or contrary to law. Such a wide exemption is not admissible
in the law of torts the object of which is compensation and not punishment. It may be generally
stated that when the insanity is of such a grave nature that the defendant was unable to know the
nature of his act, he would not be liable in tort for the act in such a case will not be a voluntary act
which is necessary for constituting a tort.
In cases where no specific intent or malice is an ingredient of the tort, the defendant would be
liable if he knew the nature of his act, although, because of unsoundness of mind he was unable to
know that what he was doing was wrong or contrary to law. This would be the position in actions
for trespass, 15 conversion, defamation 16 and other torts where what is necessary to prove is only
that the defendant intended to do the physical act which constitutes the tort. So a person was held
liable in tort for violent assault and battery when he knew the nature of his act though because of
mental disorder he did not know that it was wrong. 17 But in cases where specific intent or malice
is necessary to constitute the tort, e.g. , malicious prosecution, deceit or libel on a privileged occasion,
the defendant will escape liability if his defective mental condition negatives the existence of the
required specific intent or malice, as the case may be, though he is not so incapacitated as not to
know the nature of his act.
 Winfield Reasons for liability
➢ Loss to be borne by person who committed the wrong.
➢ Relatives to put restrain on lunatics.
➢ The lunatic to bear the loss along with other misfortune.
i. Where specific intent or malice is needed . Eg. Malicious Prosecution.
Ii. Cases relating to ordinary prudence. Eg. Negligence.
iii. Insanity of a grave nature
Eg. Epileptic attack

Morris Vs Marsden (1952)

FACTS: Marsden (Defendant) a schizophrenic, assaulted Morris (Plaintiff). Marsden claimed
that, because of his schizophrenia, he had no idea of the consequences and injuries to the
plaintiff that would result from his attack.

ISSUE: When does mental illness preclude voluntariness?

HELD: The decision of the court was that D was liable in trespass.
Stable J held that “If a person in a state of complete automatism inflicted grievous injury that
would not be actionable. In the same way, if a sleepwalker inadvertently, without intention or
without carelessness, broke a valuable vase, that would not be actionable. Knowledge of
wrongdoing is immaterial, and where there is the capacity to know the nature and quality of the
act, that is sufficient, although the mind directing the hand that did the wrong is diseased”

RATIO: Liability requires the defendant to know the nature of the act. Liability, however, does
not require the defendant to know that the act was wrong. Essentially, motive is irrelevant.