PROJECT SUBMITTED BY,

NAME: ANNA A. OOMMEN

ROLL NO: 32
SUBJECT: ADMINISTRATIVE LAW
CLASS: FOURTH YEAR, BBA LLB (Hons.)

UNDER THE GUIDANCE OF

DR. ANANT KALSE

TOPIC: LIABILITY OF ADMINISTRATION IN LAW OF

TORTS

UNIVERSITY OF MUMBAI LAW ACADEMY,

KALINA CAMPUS, MUMBAI
ACADEMIC YEAR 2019-2020

1
 INDEX

Sr.No TOPIC Page.No

1 Introduction 3

2 Liability of administration in Tort 7

3 Article 21 and Liability doctrine 13

4 Judicial decisions 19

5 References 23

2
 LIABILITY OF ADMINISTRATION IN LAW OF TORT

Tort is a civil wrong which results in unliquidated damages (Damages that are not
predetermined) if one person violates the legal right of the other. But if the individual is
violating other’s legal right is rather a government servant then the torts arising will be
categorized as a constitutional tort. The constitutional torts are solely based on the concept of
vicarious liability of the state for which the maxim stands as “quifacit per alium facit per se”
i.e. He who acts through another does the act himself. The concept of vicarious liability
postulates that if an employee commits a tort in the course of employment, then his master or
employer will be vicariously liable despite the fact that he himself did not commit the tort.

So, the inherent principle of constitutional tort can be built as to whenever a tort is committed
by a government servant in discharge of a non-sovereign function the state is vicariously
liable for the said tort.

The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what
extend the administration would be liable for the torts committed by its servants is a complex
problem especially in developing countries with ever widening State activities. The liability
of the government in tort is governed by the principles of public law inherited from British
Common law and the provisions of the Constitution. The whole idea of Vicariously Liability
of the State for the torts committed by its servants is based on three principles:

 Respondeat superior (let the principal be liable).

 Quifacit per alium facit per se (he who acts through another does it himself).
 Socialization of Compensation.

Position in India:

Unlike the Crown Proceedings Act, 1947 (England), we do not have any statutory provisions
mentioning the liability of the State in India. The law in India with respect to the liability of
the State for the tortious acts of its servants has become entangled with the nature and
character of the role of the East India Company prior to 1858. It is, therefore, necessary to
trace the course of development of the law on this subject, as contained in article 300 of the
Constitution.

3
The position of State liability as stated in Article 300 of the Constitution is as under: Clause
(1) of Article 300 of the Constitution provides first, that 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; secondly, that the Government of India or the Government of a
State 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 be sued, “if this Constitution had not been enacted”, and thirdly, that the second
mentioned rule shall be 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 the
Constitution.

Consequently, one has to uncover the extent of liability of the East India Company in order to
understand the liability parameters of the administration today because the liability of the
administration today is in direct succession to that of the East India Company.

The East India Company launched its career in India as a purely commercial corporation but
gradually acquired sovereignty. Therefore, in the beginning, the company did not enjoy the
immunity of the Crown. It was only when it acquired political powers that a distinction was
made between sovereign and non- sovereign functions.

Historical Approach to State Liability

In medieval Europe, the primary duty of the king was to ensure protection of people and their
property and maintain a peaceful ambiance having equitable laws. In the discharge of this
duty, the king was not immune to pay compensation to public in general. The instances of
king paying compensation for stolen property to aggrieved party when the officials cannot
recover the said stolen property make the scenario quite evident. But in English legal system
the similar liability of king was completely absent as they regarded the notion that “the king
can do no harm” but due to the fact that immunity enjoyed by British crown did not
particularly extend to the East India company neither of the acts dealing with State liability
provided any immunity to the Company or Secretary of the state of India.

State liability during British period was accorded with a different definition by different Acts.
Initially, it found a place in the Government of India Act 1858 which said that the secretary

4
of state can sue and be sued for liabilities and disregarded to extend the immunity which the
Crown enjoyed. Further, the concept evolved, and most refined and precise form was traced
in Section 176(1) of Government of India Act 19351 which also forms the basis for Article
300 which provides state liability in the present scenario.

Liability of State

The doctrine of state liability was first highlighted in P. & O. Steam Navigation Co. vs.
Secretary of State2 which involved the accident of plaintiff due to the negligence of
government servants. In the historical case, Sir Barnes Peacock C. J. held that the immunity
which British crown enjoyed cannot be extended to East India Company and hence the state
was liable to pay the compensation. This case is also significant because apart from state
liability it also showcased the distinction between sovereign and non-sovereign function of
state. During the post-independence period, Devaki Nandan Prasad v. State of Bihar3 was the
breakthrough case which adjudged the novel concept of Compensatory Jurisdiction and
constitutional tort. In this judgment the court apart from granting the petition also provided a
sum of Rs.25000 as exemplary cost.

Can civil liability arise as a consequence of the violation of constitutional right?

Though the concept of state liability was incorporated way back during British rule, the main
concern was that whether a civil liability can arise as a consequence of the violation of
constitutional right. So, the first case which dealt with this issue was Rudul shah v. State of
Bihar4. In this case, the petitioner Rudul Shah suffered an unlawful detention for about 14
years. It was in this case that the court held that it would be mere lip-service as to protection
of fundamental rights if the petitioner is not awarded the optimal compensation for the gross
violation of Right to life and liberty. After the aforementioned case the concept of
constitutional tort was highlighted in a number of cases one such being Bhim Singh v. State

1
“The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may
sue or be sued by the name of the Province, and without prejudice to the subsequent provisions of this chapter,
may subject to any provisions which may be made by Act of the Federal or Provincial Legislature by this Act,
sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might
have the power to sue or be sued if this Act had not been passed.”
2
Peninsular and Oriental Steam Navigation Company v. Secretary of State for India 1869 ILR 28 Bom 314
3
AIR 1983 SC 1134
4
AIR 1983 SC 1086

5
of Jammu and Kashmir5. In this case, the court held that if a person complains that his/her
legal right has been invaded the court has jurisdiction to provide the aggrieved party with
monetary compensation.

In Nilabati behera v. State of Orissa6 the court gave an important proposition that sovereign
immunity from tortious acts of state officials is different from state’s liability for
contravention of the fundamental right. Hence, the defense of sovereign immunity finds no
place in the claim for constitutional remedies under Article 327 and 2268 vis-à-vis the
compensation for contravention of constitutional rights.

How far can the liability extend?

Is it available to foreign Nationals Also?

The most celebrated judgment in regards to civil liability in consequence of the violation of
the fundamental right which inter alia discussed the contours of this liability was of
Chairman, Railway board v. Chandrima das9. In this case, a Bangladeshi woman on her way
to the holy shrine in Ajmer was raped by railway officials in Kolkata. Later, a petition under
Article 226 was filed by Chandrima Das a practicing advocate of Calcutta high court against
railway board to seek compensation for Hanufa Khatun. It was contended that Hanufa Khatun
being a foreign national is not entitled to compensation as no constitutional right were
violated.

The court after considering various issues put forward by Petitioner and respondent granted a
compensation of Rs. 10 lakhs. Firstly, on the grounds of Domestic jurisprudence based on
constitutional provisions and the grounds of Human rights Jurisprudence based on Universal
Declaration of Human Rights, 1948. Supreme Courts also contended that rape qualifies to be
a gross violation of fundamental right to life and personal liberty which is available to a
person in general. Hence, Court awarded a compensation claiming that the foreign tourist and

5
AIR 1986 SC 494
6
AIR 1993 SC 1960
7
Art. 32, The Constitution of India.
8
Art. 226, The Constitution of India.
9
AIR 2000 SC 988

6
visitors owe a behavior of high dignity which an obligation is resting on each citizen of the
country.

The court rightly observed that allowing a complete immunity in nature of sovereign
functions may result in misuse of the said powers.

Law is not static but dynamic, In the modern world having a complex society the encounters
between the people and state have become frequent in number and relevant in nature. Hence
these encounters often result in legal mishaps demanding redressal. Also, most of these cases
fall under the ambit of tort law because of the fact that to seek redressal through civil court
tort law is the one branch which appears most feasible owing to fact of its vastness. So, it’s
evident that tort law being still in its evolving stage owes a great importance and state
liability being its part can be a genuine tool for redressal against the violations committed by
the state officials.

The administration is the one who makes the laws sometimes, but can it be made liable for
his actions under the law which it makes? The constitution is made by the State, but the
constitution binds the state too and checks the exercise of power by the State. The personnel
in the administration, both can make and implement the laws and if they commit any
negligence because of which harm is caused to any individual then can he make a claim
against the administration under the law of the land.

Now ‘the King too can commit wrong’ (and most often it is the King i.e the administration
who does the wrong) and he does not evade the chain of laws, if he neglects law and tries to
overpower it by causing harm to it. The 2 major liability can be entrapped is “tort” and
“contract”.

LIABILITY OF ADMINISTRATION IN TORT

To what extent would the administration be liable for the torts committed by its servants is a
complex problem especially in developing countries with ever widening State activities. The
liability of Government and Administration in tort is governed by the principles of public law
inherited by the British Common Law and Provision of the Constitution.

7
Article 300 of the Constitution of India deals with the extent of liability of the Union of India
and the Government of a state, but it does not lay down liability in specific terms. The root of
the provision can be traced back to section 65 of the Government of India by the British
Crown, the Secretary of State for India-in-Council would be liable to the same extent as the
East India Company was previously liable. This is certainly strange way of determining the
liability of a state governed by a Constitution. It is because of this ‘strange way’ with
resultant confusion and complexity that the Law Commission recommended a legislation on
that subject too. Accepting the recommendation, the Government introduced two bills, ‘The
Government Liability in Tort’, in Lok Sabha in 1965 and 1967, neither of which emerged as
an Act. The Government allowed bills to lapse on the ground that they would bring an
element of rigidity in the determination of the question of liability.

The first judicial interpretation of State Liability during the East India Company was made in
John Stauart’s case, 1775. It was held for the first time that Governor- General in Council had
no immunity from Court’s jurisdiction in cases involving the dismissal of Government
servants. In Moodaly v. East India Company 1775 (1 Bro- CC 469), the Privy Council
expressed the opinion that Common law doctrine of sovereign immunity was not applicable
to India.

Some judgements during British Rule India, do tell us, how the law of administrative tortious
liability evolved in Indian conditions.

In State of Rajasthan v. Vidyawati (Mst.)10, the Supreme Court of India held that the State
vicariously liable for the tort committed by its servants

Accepting the recommendation, the government introduced two Bills, “The Government
Liability in Tort”, in the Lok Sabha in 1965 and 1967, neither of which emerged as an Act.
The government allowed the Bills to lapse on the ground that they would bring an element of
rigidity in the determination of the question of liability of the government in tort.
Consequently, one has to uncover the extent of liability of the East India Company in order to
understand the liability parameters of the administration today because the liability of the
administration today is in direct succession to that of the East India Company.

10
AIR 1962 SC 933

8
1. In P. and O. Steam Navigation Co. v. Secy. Of State for India 11 the Supreme Court
allowed an action against the Secretary of State for the negligent act of the government
workers. In this case, the workers employed by the Kidder pore Dockyard, which was a
government dock, were carrying iron bars across a public way passing through the port,
which bars they dropped on the road. The noise so created scared the horses of the carriage in
which the plaintiff was sitting and he sustained injuries. Sir Barnes Peacock, C.J. who
delivered the judgment of the court held that the Company had been invested with sovereign
functions but this did not make it a sovereign authority. It may be noted that after 1833, the
E.I.C. was acting in a dual capacity exercising commercial functions as also the sovereign
powers with respect to the newly-acquired territories as trustees of the Crown. The use of the
terms ‘sovereign’ and ‘non-sovereign’ function which created confusion in the later
development of the law was made clear by Peacock, C.J. in the judgement when he said: “It
is clear that the E.I.C. would not have liable for any act of any of its 3 naval officers in
seizing as prize property of a subject, under the supposition that it was the property of an
enemy, nor for any act done by a military or naval officer, or by any soldier or sailor whilst
engaged in military or naval duty, nor for any acts of any of its officers or servants in the
exercise of judicial functions.

2. The other interpretation of the P and O case 47 [P. & O. Steam Navigation Co. v. Secy. of
State of India (1861) 5Bom HC Report, Appendix ‘A’] was that the immunity extended only
to cases which may be covered within the definition of the term ‘acts of State’. This line of
reasoning was adopted by the court in Secretary of State for India-in-Council v. Hari Bhanji12

3. After independence, in State of Rajasthan v. Vidyawati (Mst.)13, the Supreme Court of

India held the State vicariously liable for the tort committed by its servants. The facts of this
case were that in February, 1952, a driver of a government jeep, while driving back from the
workshop, knocked down a person on the footpath, causing multiple injuries including
fracture of the skull and the backbone, which resulted in his death. A suit by the widow of the
deceased and her minor daughter for compensation was decreed by the trial judge against the
driver but not against the State. On appeal the High Court decreed the suit against the State
also. Hence the State of Rajasthan went in appeal before the Supreme Court. The main
argument on behalf of the State was that it was not liable for the tortious acts of its employees

11
44 (1861) 5 Bom HC Report, Appendix ‘A’
12
48 (1882) ILR 5 Mad 273
13
51 AIR 1962 SC 933

9
for in similar circumstances the East India Company would not have been liable, as the jeep
was maintained in 4 exercise of sovereign powers and not as a part of commercial- activity of
the State. B.P. Sinha, C.J. dismissing the appeal by the State of Rajasthan held that the
immunity rule of the Crown in England was based on the old feudalistic notions of justice. In
India, ever since the time of the E.I.C., the sovereign had been held liable to be sued in tort or
in contract and the common law immunity never operated in India. He went on to say that
India has now been constituted as a socialistic State with varied welfare activities employing
a large army of servants, and therefore, there is no justification in principle or in the public
interest that the State should not be held liable vicariously for the tortious acts of its servants.
It was thought that this decision has abolished the distinction between sovereign and non-
sovereign functions for the purpose of determining the State liability and that henceforth, the
government would be liable for the torts committed by its servants in all cases except ‘acts of
State’.

Government Liability in Tort —

(a) The ruling principle is that Government is not liable for torts of its employees committed
in the course of performance of sovereign functions.

(b) The theoretical doctrine as per (a) above is still adhered to, but it is being applied in a
liberal manner and the courts interpret “sovereign” narrowly, as is shown by recent law.

It is enough to cite the following cases of importance:—

(i) P & O steam Navigation Co. v. Secretary of State,14

(ii) State of Rajasthan v. Vidyawati15

(iii) Shyam Sunder v. State of Rajasthan16

(iv) Kasturi Lal v. State of Uttar Pradesh17

(v) Union of India v. Sugrabai18

(vi) Virendra v. State of Uttar Pradesh19

14
(1861) 5 Bom HCR App A. (This was really a Calcutta ruling, reported in the Bombay series).
15
AIR 1962 SC 933.
16
AIR 1974 SC 980, paragraph 21
17
AIR 1965 SC 1039.
18
AIR 1969 Bom 13.
19
(1955) 1 SCR 415, 436 (Act of State)

10
A suit lies against the Government for wrongs done by public servants in the course of
business, such as death or injury caused to a person by Police atrocities; Saheli v.
Commissioner of Police20

In any modern society, interactions between the State and the citizens are large in their
number, frequent in their periodicity and important from the point of view of their effect on
the lives and fortunes of citizens. Such interactions often raise legal problems, whose solution
requires an application of various provisions and doctrines. A large number of the problems
so arising fall within the area of the Law of torts. This is because, where relief through a civil
court is desired, the Law of Tort figures much more frequently, than any other branch of law.
By definition, “a tort is a civil wrong, (not being a breach of contract or a breach of trust or
other wrong) for which the remedy is unliquidated damages”. It thus encompasses all wrongs
for which a legal remedy is considered appropriate.

Given this importance of tort law, and given the vast role that the State performs in modern
times, one would reasonably expect that the legal principles relating to an important area of
the Law of Torts, namely, liability of the State in tort, would be easily ascertainable.
However, at present, this ideal is not at all achieved, & in reality, in India. It is for this reason
that the researcher found it necessary to consider the subject and to suggest certain reforms.

In the State of A.P. v. Chella Ramakrishna Reddy, The Hon’ble Supreme Court has also
concluded in the following words, “….. the law has marched ahead like a Pegasus but the
Government attitude continues to be conservative and it tries to defend its action or the
tortious action of its officers by raising the plea of immunity for sovereign acts or acts of
State, which must fail.”

Tortious liability- an Indian scenario

The Law of torts as administered in India in modern times is the English law as found
suitable to Indian conditions and as modified by the Acts of the Indian Legislature. The word
‘tort’ is derived from the latin term tortum-to twist, and implies conduct which is twisted or

20
AIR 1990 SC 513: (1990) 1 SCC 422: 1990 SCC (Cri) 145.

11
tortuous. It now means a breach of some duty independent of contract giving rise to a civil
cause of action and for which compensation is recoverable.

To constitute tort there must be a wrongful act. The word ‘act’ in this context is used in wide
sense to include both positive and negative act, i.e. acts and omissions. Wrongful acts which
make a person liable in tort are positive acts and sometimes omissions. An omission includes
not only failure to do something in doing an act but also a bad way of performing the act. The
law does not impose liability for mere omissions. An omission incurs liability when there is a
duty to act.

Tortious liability of State and its different phases

Tort law has been regularly concerned with the problem of determining civil responsibility
for injury. Widespread attitude which associated injury with bad luck or deficiencies in
character has been gradually replaced by one which presumes that most injured persons are
entitled to compensation, through the legal system or some other mechanism. This
transformation is the prevailing ethos of injury in America has been an important determinant
of the state of tort law.

Throughout the history of the Law of Torts in America creative scholars and judges have
sought to shape tort law to approximate their ideal conceptions of the field. But the subject
matter of tort law has proved sufficiently amorphous to resist that shaping, so that a fresh
supply of material has always existed for new generations of scholars and judges, and the
relationship between changing ideas and changing legal doctrines has sometimes been
obscured.

Different comprehensive standards of liability in tort (negligence, strict liability) have been
formulated at different times. Competing central purposes for tort law (admonishing
blameworthy conduct or compensating injured persons) have been articulated. The ambit of
tort law's coverage has been expanded theoretically (to include "traditional" areas of the Law
of Sales) and contracted (to exclude areas superseded by Constitutional Law). Tort law has

12
been thought of as essentially a private law subject or as "public" law in disguise. The image
of the subject of Torts has varied from that of a unified collection of comprehensive and
interlocking principles of civil liability, embodied in appellate cases, to that of a grab-bag
collection of diverse judgments by individual courts. Yet none of these changing intellectual
developments has affected the integrity of tort law itself. Tort law's integrity has come from a
recurrent need in American society for some legal response to the problem of responsibility
for civilly inflicted injuries. In the last hundred-odd years Americans have been injured in all
sorts of diverse ways; in that time secular explanation's for, and responses to, the problem of
injuries have predominated. Tort law has been a major explanatory and responsive device. Its
integrity and its amorphousness as well, can be linked to the place of injury in American life.

Though in India the risk is not of a drift towards the American style but with the widening of
the Right to Life guaranteed by Art. 21 of the Constitution of India to embrace almost
everything which goes to make a man’s life meaningful, complete and worth living with
dignity, the risk is that the blame for every misfortune may be laid at the doorstep of the
State.

Art. 21 and liability doctrine

The Case of Rudul Shah, lead to inference that the defense 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 the Art. 21 of the Constitution
of India. The supreme Court cases discussed above did not refer to the doctrine of sovereign
immunity or the case of Kasturilal on which the following submission was made:

“It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the
ground that it did not consider the nature of liability of the state when there is deprivation of
fundamental right.”

The modern social thinking of progressive societies and the judicial approach is to do away
with archaic State protection and place the State or the Government on a par with any other

13
juristic legal entity. Any watertight compartmentalization of the functions of the State as
“sovereign and non-sovereign” or “governmental and non-governmental” is not sound. It is
contrary to modern jurisprudential thinking. The need of the State to have extraordinary
powers cannot be doubted. But with the conceptual change of statutory power being statutory
duty for the sake of society and the people, the claim of a common man or ordinary citizen
cannot be thrown out, merely because it was done by an officer of the State; duty of its
officials and right of the citizens are required to be reconciled, so that the rule of law in a
Welfare State is not shaken.

Liability and Art. 300 of the Indian Constitution

The law in India with respect to the Liability of the State for the tortious acts of its servants
has become entangled with the nature and character of the role of the East India Company
prior to 1858. It is therefore necessary to trace the course of development of the law on this
subject, as contained in article 300 of the Constitution. Sec. 65 of the Government of India
Act, 1858, which is the parent source of the law relating to the liability of the Govt. provided
that; ‘All persons and bodies politic shall and may have and take the same suits, remedies and
proceedings, legal and equitable against the secretary of state for India as they could have
done against the said company’. This provision was continued by the succeeding Govt. of
India Act, 1915, Sec. 32, Govt. of India Act, 1935 Sec. 176 (1) and is also continued by Art.
300 (1) of the Constitution of India.

Given this importance of tort law, and given the vast role that the State performs in modern
times, one would reasonably expect that the legal principles relating to an important area of
tort law, namely, liability of the State in tort, would be easily ascertainable. However, at
present, this ideal is not at all achieved, in reality, in India. It is for this reason that we have
considered it necessary to consider the subject and to suggest certain reforms.

The law in India with respect to the liability of the State for the tortious acts of its servants
has become entangled with the nature and character of the role of the East India Company
prior to 1858. It is therefore necessary to trace the course of development of the law on this
subject, as contained in article 300 of the Constitution.

14
In the beginning the constitutional machineries relating to governance worked more or less to
general satisfaction and provided the people with a fairly safe and secure life. However, as
time passed their inadequacies have become marked and Government has lost its elegance as
it has failed to live up to the expectations of the Constitution to give real stuff to the policies
designed to promote social well-being.

The increase in administrative functions has created a vast new complex of relations between
the administration and the citizen. The modern administration impinges more and more on
individual; it has assumed tremendous capacity to affect the rights and liberties of the people.
There is not a moment of a person’s existence when he is not in contact with the
administration in one way or other. This circumstance has posed certain basic and critical
questions for administrative lawyers. Does arming the administration with more and more
powers keep in view the interest of the individual? Are adequate precautions being taken to
ensure that the administration does not misuse or abuse its powers? Do the administrative
agencies follow in discharging their functions such procedures as are reasonable, consistent
with the rule of law, democratic values and natural justice? Has adequate control mechanism
been developed so as to ensure that the administrative powers are kept within the bounds of
law, and after balancing the individual’s interest against the needs of social control? It has
increasingly become important to control the administration, consistent with efficiency, in
such a way that it does not interfere with impunity with the rights of the individual.

There is an age old conflict between individual liberty and government. There thus arises
need for constantly adjusting the relationship between the government and the governed so
that a proper balance may be evolved between the private interest and the public interest. It is
the demand of prudence that when sweeping powers are conferred on administrative organs,
effective control-mechanism be also evolved so as to ensure that the officers do not use their
powers in an undue manner or for an unwarranted purpose. In securing the balance between
public power and personal rights, it is necessary to have efficient administration. In an
administrative law case, the private party is confronted by an agency of government endowed
by all the power, prestige and resources enjoyed by the possessor of sovereignty. In reality
administrative powers are exercised by thousands of officials and affect millions of people.
Maladministration results in weakening the government.

15
It would be apparent from the Nagendra Rao and other case law on the subject, that
definiteness of the precise contours and certainty of principles of universal application are
lacking. While holding that the distinction between sovereign powers and non-sovereign
powers has become academic in the present day Welfare State, the court in Nagendra Rao
again affirms and accepts the theory of “primary and inalienable functions”.

Suit Against State In Torts

Before discussing tortuous liability, it will be desirable to know the meaning of ‘tort’. A tort
is a civil wrong arising out of breach of a civil duty or breach of non-contractual obligation.
The word ‘tort’ has been defined in Chambers Dictionary in the following words:-

“Tort is any wrong or injury not arising out of contact for which there is remedy by
compensation or damages.”

Thus, tort is a civil wrong, which arises either out of breach of no contractual obligation or
out of a breach of civil duty. In other words, tort is a civil wrong the only remedy for which is
damages. The essential requirement for the arising of the tort is the beach of duty towards
people in general. Although tort is a civil wrong, yet it would be wrong to think that all civil
wrongs are torts. A civil wrong which arises out for the breach of contact cannot be put in the
category of tort as it is different from a civil wrong arising out of the breach of duty towards
public in general.

Liability For Torts

In India immunity of the Government for the tortious acts of its servants, based on the
remnants of old feudalistic notion that the king cannot be sued I his own courts without his
consent ever existed. The doctrine of sovereign immunity, a common law rule, which existed
in England, also found place in the United States before 1946 Mr. Justice Holmes in 1907
declared for a unanimous Supreme Court:

“A sovereign is exempt from suit not because of any formal conception or obsolete theory,
but on the logical and practical ground that there can be no legal right as against the authority
that makes the law on which the right depends.”

16
Today, hardly, anyone agrees that the stated ground for exempting the sovereign from suit is
either logical or practical.

Vicarious Liability of the State

When the responsibility of the act of one person falls on another person, it is called vicarious
liability. Such type of liabilities is very common. For example, when the servant of a person
harms another person through his act, we held the servant as well as his master liable for the
act done by the servant.

Here what we mean is essentially the vicarious liability of the State for the torts committed by
its servants in the exercise of their duty. The State would of course not be liable if the acts
done were necessary for protection life or property. Acts such as judicial or quasi-judicial
decisions done in good faith would not invite any liability. There are specific statutory
provisions which the administrative authorities from liability. Such protection, however,
would not extent malicious act. The burden of proving that an act was malicious would lie on
the person who assails the administrative action. The principles of law of torts would apply in
the determination of what is a tort and all the defences available to the respondent in a suit for
tort would be available to the public servant also. If after all this, a public servant is proved to
have been guilty of a tort like negligence, should the State, as his employer is liable?

In India Article 300 declares that the Government of India or a of a State may be sued for the
tortious acts of its servants in the same manner as the Dominion of India and the
corresponding provinces could have been sued or have been sued before the commencement
of the present Constitution. This rule is, however, subject to any such law made by the
Parliament or the State Legislature.

The first important case involving the tortious liability of the Secretary of State for India-in –
Council was raised in P and O. Steam Navigation v. Secretary of State for India.

17
The question referred to the Supreme Court was whether the Secretary of State for India is
liable for the damages caused by the negligence of the servants in the service of the
Government. The Supreme Court delivered a very learned judgment through Chief Justice
Peacock, and answered the question in the affirmative. The Court pointed out the principle of
law that the Secretary of State for India in Council is liable for the damages occasioned by
the negligence of Government servants, if the negligence is such as would render an ordinary
employer liable. According to the principle laid down in this case the Secretary of State can
be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts
Chief Justice peacock admitted the distinction between the sovereign and non-sovereign
functions of the government and said:

“There is a great and clear distinction between acts done in exercise of what are termed
sovereign powers, and acts done in the conduct of undertakings which might be carried on by
private individuals without having such powers delegated to them.”

But the judgment of P. and O. Steam Navigation case, was differently interpreted in Secretary
of State v. Hari Bhanji, In this case it was held that if claims do not arise out of acts of State,
the civil Courts could entertain them.

The conflicting position before the commencement of the Constitution has been set at rest in
the well-known judgment of the Supreme Court in State of Rajasthan v. Vidyawati, where the
driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the
Collector of the district, drove it rashly and negligently while taking it back from the
workshop to the residence of the Collector after repairs, and knocked down a pedestrian and
fatally injured him. The State was sued for damages. The Supreme Court held that the State
was vicariously liable for damages caused by the negligence of the driver. In fact, the
decision of the Supreme Court in State of Rajasthan v. Vidyawati, Kesoram Poddar v.
Secretary of State for India, introduces an important qualification on the State immunity in
tort based on the doctrines of sovereign and non-sovereign functions. It decided that the
immunity for State action can only be claimed if the act in question was done in the course of
the exercise of sovereign functions.

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Then came the important case of Kasturi Lal v. State of U. P. where the Government was not
held liable for the tort committed by its servant because the tort was said to have been
committed by him in the course of the discharge of statutory duties. The statutory functions
imposed on the employee were referable to and ultimately based on the delegation of the
sovereign powers of the State.

The Court held that the Government was not liable as the activity involved was a sovereign
activity. The Court affirmed the distinction between sovereign and non-sovereign function
drawn in the P. and O. Steam Navigation’s case in the following terms.

The Supreme Court’s judgment unambiguously indicates that the Court itself on the question
of justice felt strongly that Kashturi lal should be compensated yet, as a matter of law they
held that he could not be.

There are, on the other hand, a good number of cases where the courts, although have
maintained the distinction between sovereign and non- sovereign functions yet in practice
have transformed their attitude holding most of the functions of the government as non-
sovereign. Consequently there has been an expansion in the area of governmental liability in
torts.

Pre-Constitution Judicial Decisions:

Peninsular and Oriental Steam Navigation Company v. Secretary of State for India21

A consideration of the pre-Constitution cases of the Government’s liability in tort begins with
the judgment of the Supreme Court of Calcutta in the case P. & O. Steam Navigation Co. v.
Secretary of State. The principle of this case holds that if any action was done in the exercise
of sovereign functions, the East India Company or the State would not be liable. It drew quite
a clear distinction between the sovereign and non-sovereign functions of the state.

The facts of the case were that a servant of the plaintiff’s company was traveling from
Garden Reach to Calcutta in a carriage driven by a pair of horses. The accident took place
when the coach was passing through the Kidderpore Dockyard which was Government
Dockyard. Some workman employed in the Government, Dockyard were carrying a heavy

21
(1861) 5 Bom. H.C.R. App. I,p.1.

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piece of iron for the purpose of repairing a steamer. The men carrying the iron-rod were
walking along the middle of the road.

When the carriage of the plaintiff drove up nearer the coachman slowed its speed. The man
carrying the iron attempted to get out of the way, those in front tried to go the one side of the
road while those behind tried to go the other side of the road. The consequence of this was a
loss of the time, brought the carriage to close up to them before they had left the center of the
road. Seeing the horses and carriage they got alarmed and suddenly dropped the iron and ran
away. The iron fell with a great noise resulting in injuries to one horse, which startled the
plaintiff’s horses which thereupon rushed forward violently and fell on the iron.

The Company filed a suit against the Secretary of State for lndia for the damages for injury to
its horse caused by the negligence of the servants employed by the Government of India. The
Supreme Court of Calcutta by Sir Barnes Peacock C. J. held that the Secretary of State for
India was liable for the damages caused by the negligence of Government servants because
the negligent act was not done in the exercise of a sovereign function.

The Court drew a distinction between acts done in exercise of “non-sovereign power” that is,
acts done in the conduct of undertakings which might be carried on by private person-
individuals without having such power. The liability could only arise in case of “non-
sovereign functions”. The East lndia Company had a two-fold character –

(a) as a sovereign power and

(b) as a trading company.

The liability of the Company could only extend to in respect of its commercial dealings and
not to the acts done by it in the exercise of delegated sovereign power. In the present case, the
damage was done to the plaintiff in the exercise of a non-sovereign function, i.e. the
maintenance of Dockyard which could be done by any private individual without any
delegation of sovereign power and hence the Government was liable for the torts of the
employees. The Secretary of State was not liable for anything done in the exercise of
sovereign powers.

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Secretary of State v. Hari Bhanji22

In this case, the Madras High Court held that State immunity was confined to acts of State. In
the P & O Case, the ruling did not go beyond acts of State, while giving illustrations of
situations where the immunity was available. It was defined that Acts of State, are acts done
in the exercise of sovereign power, where the act complained of is professedly done under the
sanction of municipal law, and in the exercise of powers conferred by law.

The mere fact that it is done by the sovereign powers and is not an act which could possibly
be done by a private individual does not oust the jurisdiction of the civil court. The Madras
judgment in Hari Bhanji holds that the Government may not be liable for acts connected with
public safety, even though they are not acts of State.

Post Constitution Judicial Decisions

Khatri(II) v. State of Bihar23

An important question was raised regarding the liability of the government for wrongful
arrest and detention. Moving ahead in the direction of a new dimension of the right to life and
personal liberty, Justice Bhagwati said: “Why should the court not be prepared to forge new
tools and devise new remedies for the purpose of vindicating the most precious of the
precious fundamental rights to life and personal liberty.”

It may be noted that the Government of India has not signed a treaty which provides for
compensation for wrongful arrest and detention. This amply proves the lack of government’s
concern for the precious of the precious rights of the people for the sake of discounting its
own inefficiency and lawlessness.

State of Gujarat v. Haji Memon24

It was held in this landmark judgment, that is bound to be of great use to the public, that if
any property (moveable) is seized by the police/custom officials or any other department of
the government, they are under the same responsibility as a Bailee to take care of the goods
as an ordinary man would take care of his own goods under similar circumstances. The state

22
(1882) ILR 5 Mad. 273.
23
(1981) 1 SCC 627.
24
A.I.R. 1967 S.C.

21
cannot seek to evade responsibility for loss of goods under its custody under the cloak of
sovereign functions and under the fallacious argument that Bailment can only arise by a
contract (s.148) as the said section is not exhaustive upon matters of bailment.

Basava Kom Dyamgonde Patil v. State of Mysore 25

Wherein Articles seized by the police were produced before a Magistrate, who directed the
Sub-Inspector to keep them in his safe custody and to get them verified and valued by a
goldsmith. The articles were lost, while they were kept in the police guard room. In a
proceeding for the restoration of the goods, it was held that when there was no prima facie
defense made out, that due care had been taken by officers of the State to protect the
property, the court can order the State to pay the value of the property to the owner.

25
AIR 1977 SC

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 REFERENCES

www.shodhganga.inflibnet.ac.in

www.wikipedia.org

www.lawyersclubindia.com

www.legalservicesindia.com

www.ipleaders.com

Administrative law notes – PDF

www.lawoctopus.com

www.yourarticlelibrary.com

www.legalbites.in

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