Position in England

At Common Law, the Crown could not be sued in tort either for wrong actually authorized by it or committed by it or committed its servants, in the course of their employment. Moreover, no action could lie against the head of the department or other superior officials for the acts of their subordinates for relationship between them was not of master and servant but of fellow servants. The individual wrongdoer was personally liable and he could not take the dfence of orders of the Crown, or State necessity. The immunity of the Crown from liability did not exempt the servant from liability. The result was that, whereas an ordinary master was liable vicariously for the wrong done by his servant, the Government was not liable for a tort committed by its servant. With the increase in the functions of the State, the Crown became one of the largest employers of labour in the courtry. Under these circumstances, the rule of immunity for the Crown became highly incompatible with the demands of justice. To overcome the shortcomings of the prevailing law and to ensure justice, various devices were found out. The Crown started the practice of defending action brought against its servants in respect of torts committed by them in the course of their employment. Moreover, the judgment against the Crown servants in such cases was satisfied as a matter of grace, from the Treasury. Some Crown servant had to be made the defendant. If the actual wrongdoer could not be identified, the name of a merely nominal defendant used to be supplied by the Treasury Solicitor, in Royster v. Cavey, it was held that if it was necessary for a case to succeed the person named by the Treasury Solicitor should be the same who apparently the wrongdoer.

1947 (England). The position of State liability as stated in Article 300 of the Constitution of India is as under: “(I) 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. sue or be sued in relation to their respective affairs in the like cases as the Dominion . just like a private individual. (c) in respect of any breach of the duties attaching at Common Law to the ownership. we do not have any statuary provision mentioning the liability of the State in India.” Position in India Unlike the Crown Proceedings Act. the Crown shall be subject to all those liabilities in tort to which. possession or control of property. if it were person of full age and capacity. 1947. Section 2(I) of the Act provides: “Subject to the provisions of this Act. it would be subject: (a) (b) in respect of torts committed by its servants or agents.The position has been entirely changed after the passing of the Crown Proceedings Act. occupation. Now the Crown is liable for a tort committed by its servants. subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of power conferred by the Constitution. in respect of any breach of those duties which a person owes to his servants or agents at Common Law by reason of being their employer. Provided that no proceeding shall lie against the Crown by virtue of paragraph (a) of this sub-section in respect of any act or omission of a servant or agent of the Crown unless the act or omission would. apart from the provision of this act. have been given rise to a cause of action in tort against that servant or agent or his estate.

Although the Union of India and State Governments can sue and be sued but the circumstances under which that can be done have not been mentioned. therefore. The position prevailing before the commencement of the Constitution. provides that the Union of India and the States are juristic persons for the purpose of suit or proceedings. the Union of India shall be deemed to be substituted for the Dominion in those proceedings. According to Article 300. remains unchanged thought the Parliament and the State Legislature have been empowered to pass laws to change the position.of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had been enacted.” Article 300. the Union of India and the State Government can sue or be sued in the like cases as the Dominion of India and the corresponding Indian States might have sued or been sued if the Constitution had not been enacted. thus. (2) if at the commencement of this Constitution(a) any legal proceedings are pending to which Dominion of India is a party. and (b) any legal proceedings are pending to which a province or an Indian State is a party. . the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

Sign up to vote on this title
UsefulNot useful