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TORTIOUS LIABILITY OF A STATE
Submitted In Partial Fulfillment of Academic Requirement of Curriculum of Administrative law
MR GIRISH R.
GUJARAT NATIONAL LAW UNIVERSITY GANDHINAGAR SUBMITTED BY: REG. NO: 09B106
TORTIOUS LIABILITY OF A STATE
TABLE OF CONTENTS PAGE ACKNOWLEDGMENTS LIST OF ABBREVIATIONS LIST OF CASES BIBLIOGRAPHY INTRODUCTION 3 4 6 9 10
CHAPTERS Chapter – I – Introduction to a State Chapter – II – Principle of Vicarious Liability Chapter – III – Tortious Liability Chapter – III(A) – Act of a State 13 17 19 30
TORTIOUS LIABILITY OF A STATE
I would like to thank Mr. Girish R., faculty, Administrative Law, Gujarat National Law University, for giving me the opportunity to present a research paper on Tortious Liability of a State, thereby helping me broaden my horizons on the topic and helping me to refine my research – skills. I am highly indebted to the librarians and the Xerox Room staff for providing me with relevant material and reference books which helped me with my project.
Ltd. All 6. 4. 12. 14. S 2. Ch. 8. Ed. AIR 17. Cal 19. 10. 9. BLR 16. SCC 15.TORTIOUS LIABILITY OF A STATE LIST OF ABBREVIATIONS 1. Vol. Eg. 5. SCR 20. MP 18. Mad - Section And Example Edition Allahabad England Reporter Volume Paragraph Company Limited Chapter Law Reporter Application Supreme Court Cases British Law Reporter All India Reporter Madhya Pradesh Calcutta Supreme Court Review Supreme Court Madras 4|Page . SC 21. 11. & 3. LR 13. Para. App. Co. ER 7.
PC 26. Bom 23. P Bombay Indian Law Review Andhra Pradesh Punjab and Chandigarh Punjab and Haryana Paragraph 5|Page . P&H 27. ILR 24. AP 25.TORTIOUS LIABILITY OF A STATE 22.
State of Punjab 14. Handicraft Manufacturing Association v. Hannaford 6|Page . Trilok Singh v. Municipal Board 12.T. Shantilal 11. Rashid Ahmed v.A. 9. Sonu Prakash Rakhi v. Natwarlal Khodidas Parmar v. State of Gujarat v. 5. I. Union of India 20. 2.E. Raja Ram 4.B. Bhagat Ram v. State of U.A. Mohan Lal 8. Union of India 6.TORTIOUS LIABILITY OF A STATE LIST OF CASES 1.B. Ajit Singh v.U 18. Ramamurthi v. State of Punjab v. R. Dist. C. Pradeep Kumar Biswas v. 10. Housing Board v.I. H. Kartick v. Rajasthan State Electricity Board v. Tamlin v.C.H. Som Prakash v. Kottayam Municipality 15. W. Chief Commr 19. Gulam v.O 17. Panchayat . I. Kailash Bharti 21. State of U. Jamnagar 16.P.I 3. Masthan Sahib v. Ujjam Bai v. State Trading Corporation v. Chief Commr. Indian Institute of Chemical Biology 7. Ramana v.P. State of Punjab 13.S.
Forrester v. National Small Scale Industries Corpn. Hari Bhanji 25. Exeter Corporation 42. Hongray v.S. The Queen 40. Stanbury v. Maharaja Bose v. M. Vijaya v. v. Ltd. Union of IndiaNilabati Behera v. Singrani Collieries Co. State of Jammu & Kashmir 37. v. Secretary of State for India 26. Secretary of State 43. Baker 41. State of Orissa 39. U. Chairman and Managing Director. Bishambhar Nath 7|Page . 32. S. of Police. Peninsular & Oriental Steam Navigation Company v. Venkatesh v. Union of India v. Sebastin M. Satyawati v. The City Municipal Council 44. Rudul Shah v. Union of India 31. Delhi 38. Ross v. Governor – General in Council 27. State of Rajasthan v. Bhim Singh v. Modern Cultivators 33. Inder Puri General Stores v. Abithakujambal 29. Tobin v. Union of India 35. Railway Board v. Annamalai v. Chandrima Das 30. Muniz 23. State of Punjab v. Mahal 34. Nieraha v.TORTIOUS LIABILITY OF A STATE 22. SAHELI a Woman’s Resources Centre v. Chairman. P. Secretary of State v. State of Bihar 36. Secretary of State 24. Vidhyawati 28. Commr.
Union of India v. Rao v.I. Ltd. Post Office 48. Sayed Ally 52. C. 49. Nabob of Carnatic v. Eshugbayi Eleko v. of Nigeria 53. V.TORTIOUS LIABILITY OF A STATE 45. Mohd. v.M. v. Suresh Kumar 46. East India Company v. East India Company 51. Kerala State Electricity Board v. Govt. P. Amar Singh 50. Khushaldas 8|Page .T. Nazim 47. Union of India v. Traifus & Co. Rathod & Co. P.
First Indian Edition.TORTIOUS LIABILITY OF A STATE BIBLIOGRAPHY Statutes Referred: 1. Jain and S. S. Mark Elliott. Banerjee. Sixth Edition. Wadhwa Nagpur Publications 3.com 2. www. V. www. P. The Law of Torts – Ratanlal and Dhirajlal.com 9|Page . Constitution of India – Durga Das Basu. Administrative Law (Text and Materials) – Beatson. Wadhwa Nagpur Publications 4. P. Justice B. www.org 3. www. Justice S.jstor. P. Chandrachud. P. M. Subramani. Jain. Oxford University Press Web-sites referred: 1. N. Principles of Administrative Law – M. Wadhwa Nagpur Publications 2. Matthews and Elliot. Eighth Edition.lexisnexis. Singh.westlaw. Justice G. Sixth Edition. Jain.manupatra.com 4. Justice Y. The Constitution of India Books Referred: 1.
and where the question of the liability of the State and protection of the rights of the citizens arises. colleges. 12. 21 – Right to Personal Life and Liberty or any other Fundamental Right as provided in Part – III. if these authorities are essentially under the control of the Government of India. causing violation of Art. Quasi – Judicial. also come within the ambit of the word “State” as defined under Art. any action can lie against such a State even under non – constitutional grounds or when its actions have been performed in violation of the Part – III of the Constitution.TORTIOUS LIABILITY OF A STATE INTRODUCTION This project mainly deals with the liability of a State or a Government. it becomes necessary to understand the concept of “State” as provided in the Constitution under Art. where the action is done either by the officials of the Government or by the State as a whole. are necessarily what constitute a “State”.to decide if they are liable or not for their actions. Judicial. the present project has been divided into three Chapters. any form of Legislature and all local and other authorities that are under the control of the Government of India. To understand the concept 10 | P a g e . a State is any institution or authority that comes within the control of the Government of India. Other local authorities and local self – governments also come within the meaning of the word “State”. For better presentation and understanding of the topic. There will be many cases where the Government will be required to compensate its own employees in case the functions of the Government have been breached. In liberal ordinary sense a State is any form of institution. To find answer to this question. Hence. hospitals etc. the cases where the State or the Government can be said to be sovereign institutions. 12. Administrative and Legislative authorities falling under the control of the Government of India. Authorities located outside India can also come under the jurisdiction provided by Art. authority or a body of people that has the powers to makes and legislates uniform laws to provide Fundamental Rights to the citizens as provided under Part – III of the Constitution. 12. Institutions like schools. the Parliament of India. Chapter – I of this project concentrates of the scope of the term “State” which includes the Government. The basic question of this project is primarily to decide. As would be clarified in Chapter – I. And authorities that are under the control of the Government of India need not necessarily be a Government Department or a Legislature.
and breach of this rights occur. A situation of vicarious liability has been created where. one person is held liable for the acts committed by the others. Chapter – III of the project deals with situations where tortious liability of a State arises. against an individual. As explained earlier. the Government or an official working for the Government has caused breach of the Fundamental Rights of an individual. not hindering the rights of the citizens or causing breach of any of the Fundamental Rights. as per the definition. In a situation where vicarious liability is said to have arisen for the State. The principle of vicarious liability states that in case if there is a master – servant. Thus determination of the liability of a State and to decide whether it is a sovereign or otherwise. Chapter – III also deals with the situation of the law before and after the Constitution was enacted and relates to instances where and in what cases the Government is made liable 11 | P a g e . Sovereignty of the Government means individual acts of the Government. it becomes necessary to understand the principle of vicarious liability provided under the Tort law.TORTIOUS LIABILITY OF A STATE of the liability of a State. the State cannot be made liable to pay damages to compensate to the victim. Tort means a civil wrong that has been committed that have led to damages being caused to the victim. is one of the main question that has been dealt with under Chapter – III. 300 provides for the instances when the State or a Government institution can be sued. If the employee is not working for such institutions. principal – agent or a partnership relationship between the employer and the employee. if and only if his Fundamental Rights have been violated during the course of his employment. But if the person has been damaged when the Government has been acting as a sovereign. the State cannot be made liable to compensate for the damages caused to him. that has resulted in violation of his Fundamental Rights. the employee will have to be compensated by the State or the employer. Tortious liability of a Government means a situation where the Government is to be held liable for a civil wrong committed by any official working for the Government or the State as a whole. liability of a Government only arises in situations where the Government has not been acting as a sovereign. The State and all the other institutions and authorities falling within its ambit can be held to be liable to pay damages to the employee if any damages have been occurred to violate his Fundamental Rights when he is in the course of his employment. The Constitution of India under Art.
Comparison between the English Law and the Indian Law has been made with regard to the position of tortious liability of the State. 1 30 ER 391 and 521. since the courts cannot try the acts committed by the sovereign under the general municipal law. it cannot fall under the ambit of the meaning of the words “act of a State” as they cannot try cases between two sovereigns under the general municipal law. There is a immunity from courts’ interference in respect of an act done by the State against an alien outside its territory. East India Company1 was a landmark judgment simplifying the meaning of this principle and clearing the doubts between acts done by a sovereign against another sovereign and acts done by a sovereign against its subjects. If the fault of the State or the Government has been brought under the jurisdiction of a general court of the country. (1793). Chapter – III (A) essentially deals with the act of a State where the acts have been committed by one sovereign against another sovereign or any other alien body or territory.TORTIOUS LIABILITY OF A STATE for acts committed by people working for it. 12 | P a g e . The case of Nabob of Carnatic v.
but extends to any action – administrative (whether statutory or non – statutory).. 14-16). I.C. remain among “the great generalities of the Constitution” the content of which has been and continues to be applied 2 Y. AIR 1981 SC 2198 (para. AIR 1981 SC 1694 (para. Institutions like Schools. Som Prakash v. 12 is only for the purpose of application of the provisions contained in Part – III.. 226 may lie against it on non – constitutional grounds or on ground of contravention of some provision of the Constitution outside Part – III. and B.TORTIOUS LIABILITY OF A STATE CHAPTER – I INTRODUCTION TO A “STATE” Art. 12. P. V. J. AIR 1981 SC 212 (paras. S. 34. State of U. 12 of the Constitution of India defines a “State” as. 12. 8th Edition 2007. e.S. Durga Das Basu – Commentary on the Constitution of India (Part – 1).3 A State need not necessarily be a body governed by a Government.B. Subramani. AIR 1967 Cal 231 (234)..A. “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Union of India. Hence. 5). “In this Part. 3 Kartick v. Wadhwa Nagpur Publications. Raja Ram. 5 Ibid.5 The words “State” and “Authority” used in Art. J. The Supreme Court4 has held that the word “includes” indicates that the definition of “State” is not confined to a Government Department and the Legislature. which can be brought within the fold of ‘State action’ and violates a fundamental right. 13 | P a g e .I. State of Punjab v. 4 Ramana v. even though a body of persons may not constitute ‘State’ within the instant definition.I. which has uniform and codified laws. judicial or quasi – judicial.2” Scope: This definition in Art. Corporate institutions and the Government itself also form a part of the definition of a State as provided in Art.A. Chandrachud. 23). AIR 1979 SC 1628 (paras. 37). J. W.P..g. a writ under Art. Gulam v.. Banerjee. unless the context otherwise requires. S. where such a body has a public duty to perform or where its acts are supported by the State or public officials.
I. Indian Institute of Chemical Biology.15 ‘Other authorities’ refer to authorities other than those of local and self Government. AIR 2000 Ker.. A ‘local authority’ is defined in section 3(31) of the General Clauses Act X of 189710 as follows – “ ‘local authority’ shall mean a municipal committee. 14 R. Mohan Lal16 there is no 6 Pradeep Kumar Biswas v. the control or management of a municipal or local fund”. Ibid. by virtue of entry 5 of List II of the 7th Schedule. (2002) 5 SCC 111 (Supra). Municipal Board. State of U. State of Punjab. (para. J. Panchayat . Kottayam Municipality. Natwarlal Khodidas Parmar v. 10 State of Gujarat v. This expression will therefore include a Municipal Committee11. Rajasthan State Electricity Board v. Rashid Ahmed v.9 Local authorities are under the exclusive control of the States. it includes all constitutional or statutory authorities on whom powers are conferred by law7. Jamnagar. 4-5). p. State of Punjab. AIR 1967 SC 927. district board. 11 Ibid. (1950) SCR 566 (571) : AIR 1950 SC 163. Ramamurthi v. body of port commissioner or other authority legally entitled to. (1963) 1 SCR 778 (969). who have power to make rules. Bhagat Ram v. Shantilal. (1967) 1 SCR 377 (385).. 36. Municipal Board.. Rashid Ahmed v. a Panchayat12 and a Port Trust13. including even autonomous bodies8 whether they are under the control of the Government or may be regarded as agents or delegates of the Government or not. In view of the Supreme Court’s decision in Rajasthan State Electricity Board v. Ajit Singh v.TORTIOUS LIABILITY OF A STATE by Courts from time to time. (1964) 1 SCR 656 (666). 15 16 14 | P a g e . Shantilal. AIR 1969 SC 634 (643). Casebook.. 30. That entry contains a list of some local authorities. AIR 1969 SC 634 (643). Dist. 7 8 9 Ujjam Bai v. Mohan Lal. 12 13 State of Gujarat v. having the force of a law. AIR 1967 SC 856 (866). AIR 1990 Guj 142. Municipality is a “State” for the purpose of this Article 14 and local or other authorities may be a ‘State’ too within the meaning of Art. per AYYANGAR.6 Thus. but that does not mean that the authorities are State Government or Central Government as there is distinction between “State” and “Government”. 12. Handicraft Manufacturing Association v. or entrusted by the Government with. regulations etc. Chief Commr.P. (1967) 1 SCR 377 (385). (1950) SCR 566 (571) : AIR 1950 SC 163.
given to the above words a meaning different from that given in the Constituent Assembly. (1964) 1 SCR 656 (666). Indian Institute of Chemical Biology. See also Pradeep Kumar Biswas v.22 The Supreme Court23 has.. (2002) 5 SCC 111 (supra). 155.21 An authority which is located outside India may still come under the definition of ‘State’ under Art. Chief Commr.H. Dr. Vol. and carrying on non – governmental functions would be ‘State’ under Art.g. Constituent Assembly Debates. 189). even a statutory corporation.20 Quasi – governmental agency is a sponsored enterprise or corporation (sometimes called government controlled corporation). Ibid. (1981) 1 SCC 449 : AIR 1981 SC 212. Pradeep Kumar Biswas v. the State Trading Corporation19 and that the ‘other authorities’ included in Art. 12 if it is under the control of the Government of India. 12 and that. C.T. Housing Board v. According to the Supreme Court.. (1964) 3 SCR 99 (123. the words ‘under the control of Government of India’ control the word ‘authorities’ and not the word ‘territory’.. AIR 1963 SC 1464 (1467-8). H.E. it is now clear that in order to be ‘State’ an authority need not necessarily exercise governmental functions or constitute an instrumentality of the Government. 52). (2002) 5 SCC 111 – para.g.. AIR 1996 SC 434 (para. Sonu Prakash Rakhi v. Masthan Sahib v. this expression ‘other authorities’ cannot be construed ejusdem generis with the authorities specifically mentioned. mandatory and trust territories which might be placed by international organisations under the control of the Government of India. having a legal entity separate from the State. 12 have no common genus. Authority is the “person or persons in whom government or command is vested”. AIR 1963 SC 533 (537). VI.. Chief Commr.O. which might come under the administration of India under some international arrangement. 189). 15 | P a g e .. Chief Commr. e. e. a University 18.17 The real test is whether it is endowed with constitutional or statutory powers. Ambedkar.B. 607. accordingly.U.O. 18 19 20 21 22 23 Ramamurthy v. This article explains that India would not discriminate.. 74. between its own nationals and the people of other countries. C. If the test is satisfied.T. so far as the fundamental rights of individuals are concerned.. (1964) 3 SCR 99 (123. 12. p. These words extend to the application of the fundamental rights to areas outside the territory of India. however. 155. Indian Institute of Chemical Biology.TORTIOUS LIABILITY OF A STATE common genus in Art. so the expression would be read thus: 17 Ramamurthi v. State Trading Corporation v. which may be under the control of the Government of India for the time being. State Trading Corporation v. Union of India.
12 only if they are under the control of India. these need not be under the control of India in order to be deemed ‘State’ under Art.TORTIOUS LIABILITY OF A STATE ”all local or other authorities within the territory of India or all local or other authorities under the control of the Government of India”. 1947). 12 will apply to two categories of ‘authorities’: (a) Authorities situate within the territory of India. 12. according to this interpretation. but it will give it a constitutional perspective while ours is an administrative analysis. So owing to that point the discussions are limited. 12. (b) Authorities situate outside the territory of India (e.g. these will come within the purview of Art. The further discussion on the scope of the word state can go long. whether it is ‘under the control of Government of India’.. 16 | P a g e . Thus. namely. Art. As a matter of fact an entire project can be made on this point. The result of interpretations is that in respect of authority situated outside India. an additional test has to be satisfied before it can be brought within Art. territories administered by India under the Foreign Jurisdiction Act.
Their liability is also joint and several and the plaintiff can choose to sue either one of the partners or the entire firm for the tort committed by the guilty partner. 300 (1) The Government of India may sue and be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State and may. all the other partners are vicariously liable for the same. 300 of the Constitution of India is as under: Art. his younger brother took the motor cycle without his knowledge or permission and caused the accident.TORTIOUS LIABILITY OF A STATE CHAPTER – II PRINCIPLE OF VICARIOUS LIABILITY Vicarious liability is a concept of Tort Law meaning the liability to be borne by one person for the acts committed by another person. The liability of the principal arises when his agent commits a tort in the course of performance of his duty as an agent and hence they are considered to be joint tortfeasors since their liability is joint and several. can only be sued if the agent. Kailash Bharti24. 300 of the Constitution should be reffered. The principle of vicarious liability underlines one very important concept. These relationships are mainly categorized in three parts: (a) Principle and Agent. and (c) Master and Servant. while the owner of the motor cycle was outside the country. The same rule applies in the case of master – servant relationship where the master is vicariously liable for the wrongful act done by his servant in the course of employment. the guilty partner. subject to any provision which may be made by Act of Parliament or of the Legislature of 24 1986 ACJ 757 (P & H). 17 | P a g e . and the servant commit the wrongful act during the course of their employment. When the wrongful act is done by one partner in the ordinary course of the business of the firm. partners. Art. all of the partners. the principal. respectively. or a master – servant relationship. It was held that the younger brother could not be deemed to be the agent of the owner of the motor cycle and the latter could not be vicariously liable for the accident. The principle of vicarious liability arises only in certain cases and where a relationship has been established between the two persons. In the case where a state is to be held liable for the acts committed by its employees and officials. and the master. (b) Partners. It states that in the case of a principal – agent. Art. In the case of Trilok Singh v.
Art. such an act was done as a sovereign function and injury to the individual was not caused to him during the course of his employment. and during such a course of fulfilment of the duty. and (b) any legal proceedings are pending to which a Province or an Indian State is a party. 300 provides for situations under which the Government of India can be sued after the commencement of the Constitution. (2) If. the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings. 18 | P a g e . No action lies against the Government for injury done to an individual in the course of exercise of sovereign functions of the Government. it causes injury to any individual. then the individual cannot be compensated for the damages done to him because. It provides for the trial of those cases that are pending in the Courts before and after Indian independence and admission and disposal of those cases under the name of Union of India. the Union of India shall be deemed to be substituted for the Dominion of those proceedings.TORTIOUS LIABILITY OF A STATE such State enacted by virtue of power conferred by this Constitution. If the Government has been acting out of its own accord. 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. at the commencement of this Constitution – (a) any legal proceedings are pending to which the Dominion of India is a party.
inter alia. Intentional torts such as assault. false imprisonment etc. the Federal Tort Claims Act. even if the discretion is abused or there is negligence. v. The Act exempts the government from liability for torts committed by officials in the discharge of their discretionary functions conferred on them by statutes. it was regarded as an attribute of sovereignty that the state could not be sued in its own courts without its consent. Moreover. as defence of the realm. Muniz26. 26 19 | P a g e . are excluded.S. (1963) 10 L ed 2d 805. Position in Foreign Countries: (i) Britain: Before 1947. the King could not be held responsible for the negligence or misconduct of his servants.S. The Supreme Court of America. so long as it is exercised with due care. 1947. 1946. Government is more restricted than that of the British Government. where the question arose that whether the United States was 25 (1951) 1 KB 18. the government would pay compensation in proper cases by settling the matter with the injured party. battery. Hence. in the case of U. In the case of common law duties. Government is liable to the same extent as a private individual under like circumstances. which makes the Crown in principle liable for torts to the same extent as a private person of full age and capacity subject to such exception.S. GOVERNMENTAL TORTIOUS LIABILITY: a. The tortious liability of the U.TORTIOUS LIABILITY OF A STATE CHAPTER – III TORTIOUS LIABILITY 1. Hannaford25.A: In the United States of America. the U. as per one of the aspect of the doctrine of immunity. (ii) U. defines the tortious liability of the central government. as it was decided in the case of Tamlin v. statutory corporations were held liable for torts. armed forces and postal services. the Crown enjoyed immunity from tortious liability under the common law because it was believed that the neither any wrong could be imputed to the King and nor could he authorize any wrong.S. To mitigate the injustice arising out of the immunity rule. However. the position was accordingly changed by the Parliament enacting the Crown Proceedings Act. and as such. The Crown thus becomes vicariously liable o a very large extent for the torts committed by its servants.
300(1) of the Constitution which declares inter alia that the Government of India. the East India Co. b. the Company had a dual character: it was a trader and also 27 By 3 & 4 Will IV. Thus. 32 of the Government of India Act. the Crown assumed sovereignty in India to take over the administration of India from the hands of the Company. was made a trustee for the Crown in respect of all the property which it possessed in India. the liability of the Government was made co – extensive with that of the Secretary of State for India under S. 20 | P a g e . In 1858. Thus. The Act of 1858 transferred the Indian Territories to the Crown. 65 of this Act thus preserved against the government the same suits and proceedings which were then available against the East India Company. a federal prisoner. the East India Company came under the hold of the Government of India in trust for the British Crown. 176 of the Government of India Act. may 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 the Constitution had not been enacted. the Act provided that the Secretary of State as a body corporate would have the same rights of suit as the Company had and would be subject to the same liability of being sued as previously attached to the East India Company. which in turn made it co – extensive with that of the East India Company prior to the Government of India Act. Position in India: (i) Pre – Constitution: The extent of liability of the government for torts of its employees is defined by Art. C. or personal injuries to. or of a State. from 1765 to 1858. By the Charter Act of 1833. 1915. accepted the allegations. 85. 1935. The Secretary of State for India in Council could be sued in all those cases in which the East India Company could be sued before 1858 27. S. stated that the Dominion of India and the Provincial Government may sue or be sued in relation to their respective affairs in the like cases as the Secretary of State for India in Council might have sued or been sued if the Government of India Act of 1935 had not been enacted. The Court emphasized that the Federal Tort Claims Act was designed not only to avoid injustice to those having meritorious claims barred till then by sovereign immunity but it also waived the sovereign immunity for claims arising out of the negligent treatment in government hospitals. 1958.TORTIOUS LIABILITY OF A STATE liable for the acts and omissions of its employees resulting in death of. S. This is subject to any law made by the Parliament or the State Legislature. As the Queen could not be sued in her own courts under the common law prevailing at the time.
1858 – Peninsular & Oriental Steam Navigation Company v. case thus laid down two propositions: (a) Apart from any special statutory provision. made a claim for damages against the Secretary of State for injury to its horse caused on the highway because of the negligence of some workmen employed in the Government Kidderpore Dockyard. the court held in the instant case that the Company would have been liable for negligence of its servants in repairing a river steamer or doing any action in connection with such repairs. against been the Secretary of State as successor to the Company. the Company was acting in a dual capacity in India as a merchant. suits could have brought against the East India Company and. where the P. the court stated that where an act was done in exercise of ‘sovereign powers’. the Company would be liable for torts of its servants committed during the course of such activities. consequently. no action would lie in the former case.TORTIOUS LIABILITY OF A STATE exercised some sovereign powers. & O. After the Charter Act of 1833. The court pointed out that the fact that the Company exercised sovereign powers as a delegate of the Crown did not make it a sovereign. the Crown immunity could not extend to it. & O. the Secretary of State was held liable. the court posed the question whether the East India Company would have been made liable in such a situation. the immunity enjoyed by the Crown was never extended to it. Therefore. As to the scope of actual liability of the Company. As the Company was an autonomous corporation. 1. no action would lie against it. as well as one exercising sovereign powers as a trustee of the Crown in respect of the territorial possessions acquired by it. Thus. The P. To determine the liability of the government. Secretary of State 28 – was decided in 1861 by the Calcutta Supreme Court. having an existence of its own. On the basis of this reasoning. in respect of acts done in the 28 5 Bom HCR App. The sovereign powers were defined as “powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them”. 65 of the Government of India Act. The court further stated that if the Company were carrying on activities which would be carried on by private persons. 21 | P a g e . In a leading case arising under S. and bearing no relationship of servant or agent to the British Crown. Hence.
The facts of the case. & O. The view was taken that the acts of the government fell either outside. Hari Bhanji29. and a narrower view of the P. 30 22 | P a g e . He paid under protest and instituted a suit for recovery. Most of the cases cited in P. were that during the course of transit of salt from Bombay to Madras ports.TORTIOUS LIABILITY OF A STATE conduct of an undertaking which might without sovereign powers. The P. The court ruled that the immunity of the East India Company extended only to “acts of state”.. the municipal law and that it was only the former of which the courts could not take cognizance. & O. case was considered by the Madras High Court in the case of Secretary of State v. the functions exercise of be carried on by private individuals distinction between the ‘sovereign’ and ‘non – sovereign’ functions is amorphous and unfocussed except when the court equals sovereign functions with acts of state in the present case. strictly so – called and that the distinction based on sovereign and non – sovereign functions of the East India Company was not well founded. but that it did not exclude liability in other respects. In Hari Bhanji. ruling was adopted. The view propounded that the government was liable for all acts other than an ‘act of state’ and that the distinction based on ‘sovereign’ and ‘non – sovereign’ functions was not well founded. 29 (1882) ILR 5 Mad 273. (b) The Secretary of State was not liable for anything done in the sovereign powers. emphasis supplied. & O. a broader view of government liability. or within. & O. 279. Acts thus done in the exercise of sovereign powers but which do not profess to be justified by municipal law are what we understand to be the acts of State which municipal courts are not authorised to take cognizance.30 As regards P. it was said that it was an authority for the proposition that the government was responsible for injuries in the course of transactions of a commercial or private character. as examples of sovereign are really cases pertaining to act of state. the rate of duty on salt as enhanced and the merchant was called upon to pay the difference at the port of destination. However. (1882) ILR 5 Mad 273. briefly stated.
the position as regards the tortious liability of the government would have developed on entirely different lines. Transportation: A large number of cases have occurred pertaining to claims of damages against the State by individuals for injuries caused to them due to negligence of the drivers of the State transport. The courts continued to distinguish between sovereign and non – sovereign functions of the government for purposes of governmental liability. 31 IA. an undertaking which a private individual can equally well undertake. Governor – General in Council32. 32 33 23 | P a g e . was that the government was not liable for any tortious liability arising out of the exercise of a ‘sovereign’ function. As stated by the Supreme Court in the case of State of Rajasthan v. the P. in effect. and thus became the ruling norm. DEVELOPMENTS IN THE LAW: a. 55. & O. But the view that found general judicial acceptance. (ii) Post – Constitution: Even in Republican India after the new Constitution came into force in 1950. AIR 1952 Cal 242. ruling. Vidhyawati33. the Government was held liable for tortious action of a railway servant committed by him within the course of his employment as running of railways was held to be not in exercise of sovereign powers. the State was held liable for the accident caused by the driver of a jeep owned and maintained by the State for the official use of the collector.31 Had the view propounded in Hari Bhanji found judicial acceptance in India. AIR 1962 SC 933 : 1962 Supp (2) SCR 989.” 2. Secretary of State for India. Vol.TORTIOUS LIABILITY OF A STATE While the line of reasoning adopted by the court in Hari Bhanji found some support in a few later cases. In the case of Maharaja Bose v. & O. view drawing distinction between sovereign and non – sovereign functions came to be perpetuated in the case of Forrester v. Suppl. Railways were held to be a “commercial undertaking. an undertaking not in exercise of sovereign powers. the pre – Constitution judicial trend continued and the courts kept on enforcing the P.
Military Vehicles: In several cases. since any person can drive a jeep. Chandrima Das36. the government has been held liable to pay compensation for injuries caused by negligent driving of military vehicles engaged in doing various odd jobs. no ‘sovereign’ function was held to be discharged when a military vehicle carrying hockey and basket ball teams to an Indian Air Force station to play matches against the Indian Air Force.TORTIOUS LIABILITY OF A STATE Similar are the judgments of various High Courts and the Supreme Court in various cases concerning the state liability. met with an accident due to the negligence of the driver. and a person was killed and hence the state was not entitled to claim immunity for the tortious act of its employee. Railway Board v. b. in light of the Vidhyawati34 case. Hence. The court ruled that running of railways has been characterised as a commercial activity. a person was killed in an accident with a jeep driven by a government employee during the scope and course of his employment. In the case of Annamalai v. c. AIR 2000 SC 988 : 2000 CrLJ 1473 : JT 2000 (1) SC 426. P. AIR 1976 J&K 80. Similarly. Union of India v. in the case of Satyawati v. but the purpose on which the vehicle was employed and whether that purpose could be characterized as ‘sovereign’. AIR 1962 SC 933 : 1962 Supp (2) SCR 989. Establishing yatri niwas at various railway stations to provide lodging and boarding facilities to passengers on payment of charges is regarded as a part of the commercial activity of the Government of India and such an activity cannot be equated with the exercise of sovereign power. Vidhyawati. the government would become vicariously liable for the torts of its servants. AIR 1979 Mad 276. AIR 1967 Del 98. S. Union of India37. a Bangladeshi woman was gang raped by several railway employees in yatri niwas attached to a railway station. The test applied is not that a military vehicle was involved in an accident. as driving a jeep is a non – sovereign function. Abithakujambal35. If not. 34 State of Rajasthan v. 35 36 37 24 | P a g e . the court held that the government was to be held liable to pay damages to the widow of the deceased on the principle of vicarious liability for its servant’s tortious act. Mahal. Railways: In the case of Chairman.
AIR 2000 SC 988 : 2000 CrLJ 1473 : (2000) 2 SCC 465. viz. Government Hospitals: In the case of M. the right to live with human dignity contained in Art. 21. Modern Cultivators39.38. Torts against Person: Art. 21 of the Constitution of India plays a very important role in this part. AIR 1983 SC 1086 : 1983 CrLJ 1644 : (1983) 4 SCC 141 : (1983) 3 SCR 508. f. Torts against Property: The government was held liable under the general principles of law of torts in the case of State of Punjab v. The Court also ruled that the protection of Art.TORTIOUS LIABILITY OF A STATE d. 21 extends not only to the citizens of India but even to foreigners who come to India merely as tourists or in any other capacity. Hongray v. 21. Ltd. The cases of Rudul Shah v. where a Bangladeshi woman was gang raped by railway employees in the yatri niwas attached to a railway station. State of Jammu & Kashmir43 and SAHELI a Woman’s 38 AIR 2001 AP 502. and hence the Court awarded compensation to the concerned person.41 Sebastin M.. the Supreme Court ruled that rape is an offence which is violative of the Fundamental Right of a person under Art. Railway Board v. Union of India. Chandrima Das40. AIR 1965 SC 17 : 1964 (8) SCR 273. Vijaya v. State of Bihar. In the case of Chairman. where the plaintiff brought a suit for compensation against the State Government for the damage caused to his land and crops due to inundation as a result of breach in canal maintained by the government under the Northern India Canal and Drainage Act. It violates the most cherished rights of the victim. 39 40 41 25 | P a g e . e. since it means right to live with human dignity and this includes a guarantee against. Singrani Collieries Co. since the breach had been caused by the negligence of the government employees.42 Bhim Singh v. Chairman and Managing Director. the appellant was awarded compensation by the court for negligent transfusion of HIV infected blood in a government hospital.
44 also lead to the inference that the defence of sovereign immunity is not available when the State or its officers acting in the course of their employment infringe a person’s fundamental right of life and personal liberty as guaranteed by Art. it cannot abdicate this function and put the life and liberty of the citizens in jeopardy. of Police. 25. where the Supreme Court had awarded a compensation of Rs.50. (1985) 4 SCC 677 : AIR 1986 SC 494 : 1986 All LJ 653 :1986 CrLJ 192. The Government made an ex gratia payment of Rs. The Court explained the basis on which the liability of the State arises in such cases like custodial death. State of Orissa46. AIR 1993 SC 1960 : (1993) 2 SCC 746 : 1993 CrLJ 2899. “based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply.TORTIOUS LIABILITY OF A STATE Resources Centre v. even though it may be available as a defence in private law in an action based on tort. 1. The award of compensation in a proceeding under Art. Union of India45. 226 of the Constitution is a remedy available in public law.000 to the widow of a person who had died in police custody as a result of injuries inflicted on him because of the police. STATUTORY FUNCTIONS OF OFFICIALS: 42 (1984) 3 SCC 82 : AIR 1984 SC 1026.) for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action of tort. 43 44 45 46 26 | P a g e . 32 or Art. h. Directing the Government to pay adequate compensation to the petitioners for the loss suffered by them. loss of property was caused to the petitioners in a communal riot in Jammu. Police Lawlessness: A significant pronouncement in this line of cases is Nilabati Behera v. the High Court pointed out that the maintenance of law and order is the duty of a responsible government. 3.000 as compensation to the petitioners whereas the government appointed expert committee had assessed the loss at a much higher figure. Commr. police atrocities etc. 21 of the Constitution. AIR 1990 SC 513 : AIR 1984 SC 1026 : (1990) 1 SCC 422. Failure to maintain Law and Order: In the case of Inder Puri General Stores v. g. Delhi. AIR 1992 J&K 11.
In such a case. Exeter Corporation. the official himself may be personally liable for the torts he commits. Similarly. the principle was followed that the state would not be vicariously liable for acts of its servants performed by them in pursuance of a power conferred on them by a statute. As it was held in the case of Tobin v. accordingly. Also. This was on the basis that the rule embodied in the maxim “respondent superior” is subject to the well recognized exception that a master is not liable for the acts of his servant performed in the discharge of a function conferred on him by law. 4. where a function is conferred by law directly on the employee. NEGLIGENCE OF MUNICIPAL BODIES: Municipal bodies are statutory bodies discharging many functions of public interest. (1905) 2 KB 839.TORTIOUS LIABILITY OF A STATE Formerly. In a number of cases. the courts have held such bodies liable to pay compensation for the tortious acts of their servants. In the case of Venkatesh v. the employer cannot be said to have legal control over him in the discharge of that function and. AIR 1975 Knt 62. Stanbury v. Baker. where the municipality had demolished some buildings belonging to the plaintiff for the purpose of broadening a road without taking any action to acquire the buildings under the Land Acquisition Act. the court had awarded damages to the plaintiff to compensate him for the injury sustained by him for the tortious act of the municipality. in the case of Ross v. The Queen47. the Secretary of State was held not liable for the wrongful acts of the district magistrate done by him in the exercise of statutory authority. AIR 1915 Mad 434. The City Municipal Council49. the employer cannot be held liable for the wrongs committed by the employee during the course of discharging that function. However. the general law of agency has no application. 48 49 27 | P a g e . 1901 AC 561. Government Companies: 47 143 ER 1148. Secretary of State48. a. Nieraha v.
AIR 1980 SC 431 : (1980) 1 SCC 284. which imposes a duty on the electricity board to hold 11 KV overhead lines at a height of 15 feet above the ground. 1898. 1956. and instead the line in the instant case sagged to a height of 9 feet above the ground and a boy came in contact with the line and sustained serious burns and injuries which affected his physical and mental capacities. NEGLIGENCE OF POST OFFICES: The liability of the post office was first questioned in Union of India v.along with interest from the date of filing the suit by way of compensation to the plaintiff for the injuries suffered by him. Mohd.000/. The court ordered the board to pay a sum of Rs. where Rule 77(3) of the Indian Electricity Rules. Suresh Kumar51. 300 of the Constitution and therefore the principles of the general law of torts are applicable to them to the same extent as to any corporate body. v. Bishambhar Nath50. in National Small Scale Industries Corpn. NEGLIGENCE OF ELECTRIC UNDERTAKINGS: The courts have also awarded compensation for injuries or death caused to persons because of negligence of the statutory electricity boards to properly maintain electric installations. 5. the corporation was held liable for the damage caused to the building of the respondent [of which the corporation was a tenant] due to the negligence of the employees of the corporation.TORTIOUS LIABILITY OF A STATE The government sets up a number of statutory corporations or bodies incorporated under the Companies Act. In the case of Kerala State Electricity Board v. 6. The Post Office Act. 1. Nazim52. It is really a branch of the public service providing 50 AIR 1979 All 35. Most of these bodies are engaged in carrying commercial enterprises. was violated. 51 52 53 28 | P a g e .02. It is not an agent of the sender of the postal article for reaching to the addressee. Actions for damages against such bodies for tortious acts of their servants are not covered by Art. The Supreme Court has ruled that post office which has been established by a statute53 is not a common carrier. Thus. AIR 1986 Ker 72.
(1975) 2 QB 352. 29 | P a g e . AIR 1960 SC 233 : 1960 (2) SCR 75. Rathod & Co.. Ltd. AIR 1959 SC 1394 : 1960 (1) SCR 401. Post Office. v.54 54 Traifus & Co.TORTIOUS LIABILITY OF A STATE postal services subject to the provisions of the Post Office Act and the rules made thereunder. C.T. P. v. Union of India v. Cf.I. Amar Singh.M.
If the government justifies its act under a municipal law. under the English law. East India Company56. There is immunity from courts’ interference in respect of an act done by the state against an alien outside its territory. 30 ER 391 and 521. P. of Nigeria.TORTIOUS LIABILITY OF A STATE CHAPTER – III (A) ACT OF A STATE The government is not regarded as liable for an “act of state”. (1931) AC 692. An act of state is an act of a sovereign against another sovereign or an alien outside its territory. It is a sovereign act which is not grounded in law.55 This principle has also been applied in India in a number of cases in the pre – Constitution era with respect to the princely states existing at the time. municipal courts have no power to examine the propriety or legality of an act of state. As an act of state derives its authority not from municipal law but from ultra – legal or supra – legal means. 278. that act cannot be an act of state. Khushaldas. and such an act is not immune from judicial scrutiny.58 55 Eshugbayi Eleko v. In Nabob of Carnatic v. it was held that the resumption by the Madras Government of a jagir granted by the former Nabab of Carnatic before the date of cession to the East India Company was an act of sovereign power and so exempt from the jurisdiction of the courts. Govt. the Company was having acted throughout in its political capacity. V. There can be no act of state between a state and its subjects. 7 MIA 555 (1827). unless they are temporarily within the allegiance of the Crown. is an act of executive as a matter of policy performed in the course of is relations with another state during its relations with the subject of that state. 56 57 58 30 | P a g e . Rao v. (1793). An act of state. In East India Company v. Its legality and validity must be tested by the municipal law and in municipal courts. Sayed Ally57. a suit brought by the Nabab against the Company for an account under a political treaty between the Company and the Nabab was dismissed as it was a matter between two sovereigns. AIR 1949 Bom 277.
Thus. secular. The position was however changed in 1947. the king has no place and the country and the government owe no allegiance to him. both internally and externally. It thus includes all legislative and executive organs of the state Union and the states. railways. etc. If the aggrieved person has been acting out of his own accord and performing a sovereign function. It is a sovereign. The word ‘sovereign’ emphasises that India is no more dependent on any outside authority. and compensate them for the same. where the new law declared all statutory corporations and the government to be held liable in cases where the employees have been damaged or hurt during their course of employment. This is not the position in England. all local and other authorities within the territory of India. 12. municipal bodies. Art. The definition of a ‘state’ provided in Art. democratic republic’. The principle of vicarious liability means that the liability is to be borne by one person for the acts committed by another. It is necessary to understand the fact that the act committed by such an institution has caused damages to the person during the course of his or her employment. 31 | P a g e . schools. the Crown enjoyed immunity over the fact that they cannot be tried and charged for any wrong done by them or the government to the citizens during their course of employment or otherwise. The principle of vicarious liability arises only in those situations where there is a relationship of masterservant. So far as the Constitution of India is concerned. all corporations. the Government and Legislature of each state. 300 of the constitution provides for situations wherein the Government can be sued and under what circumstances it can be sued. and all local and other authorities outside India. universities. post-offices. principal-agent or of partners between the employer and the employee. during the course of his or her employment. To prove the liability of these institutions. fall within the ambit of the meaning of the word ‘state’ as defined in Art. the institution cannot be held liable to pay damages and compensation to the person thus hurt. that is under the control of the Government of India. 12 of the Constitution of India includes the Government and the Parliament of India. socialist.TORTIOUS LIABILITY OF A STATE CONCLUSION The Preamble of the Constitution of India declares India to be a ‘sovereign. it is necessary to prove them to be vicariously liable. Till the 1947.
the government is required to pay compensation to the employee for the damages caused. the government is still liable to pay compensation to the employees. it will be held liable to pay all costs to the aggrieved party. In case where the act has been committed by the state. in case where a tort has been committed by a government that is not in exercise of its sovereign functions. it cannot be sued. In case if damages have been caused to the employee during the course of his employment. Thus. Hence. the government cannot be compelled to pay compensation to the employee. if a private corporation is tried and charged for committing an offence against an employee and where an employee is damaged. 32 | P a g e . since the private institution is a sovereign and it is performing sovereign functions that do not fall within the control of the Government of India. All private institutions do not fall under the concept of the definition of a state.TORTIOUS LIABILITY OF A STATE It is therefore concluded that when a state is exercising sovereign functions of its own.
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