(Project file)

VICARIOUS LIABILITY OF STATE

SUBMITTED TO- SUBMITTED BY-

Ms. Kritika Sheoran Charu Lata

Assistant Professor Bcom.llb (hons.)
UILS Section-D/ sem.
PU Chandigarh Roll No. -204/20
UILS
PU Chandigarh

1|P a g e
 Presentation, inspiration and motivation have always played a key role in
the success of any venture. The completion of this project requires a lot of
guidance and assistance from many people.
I would like to express my special thanks and gratitude to Ms. Kritika
Sheoran, University institute of legal studies, Chandigarh who gave us the
opportunity, encouragement, valuable suggestions and fruitful guidance to
do this project . Class lecture helped me a lot to understand the topic and
complete the project successfully on topic,

VICARIOUS LIABILITY OF STATE

I feel to acknowledge my indebtedness and deep sense of gratitude to the
entire faculty of department of legal studies, from where I learnt the basics
of law. All the informal discussions and intellectual support helped me in the
entire duration of this work.

Charu Lata

B.com.llb(hons.)

Semester: 1 , Sec. D

Roll No. 204/20

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 CONTENTS
1. INTRODUCTION .......................................................................................................................4
2. VICARIOUS LIABILITY OF THE STATE .................................................................5
 FUNCTIONS OF THE STATE ........................................................................................5
3. ACT OF POLICE OFFICIAL ..............................................................................................7
4. ACT DONE IN EXERCISE OF SOVEREIGN POWERS ....................................7
5. ACT DONE IN EXERCISE OF SOVEREIGN POWERS ....................................7
6. TORTS COMMITTED BY THE SERVANTS OF THE STATE IN
DISCHARGE OF OBLIGATIONS IMPOSED BY LAW AND IN
EXERCISE OF SOVEREIGN FUNCTIONS ...............................................................7
7. KASTURI LAL v. STATE OF U.P. ...................................................................................8
8. LOSS TO PROPERTY ............................................................................................................ 10
9. LIABILITY OF ELECTRICITY BOARD IN CASE OF
ELECTROCUTION ................................................................................................................. 10
10. SOVEREIGN IMMUNITY IS SUBJECT TO FUNDAMENTAL RIGHTS
.............................................................................................................................................................. 11

11. LIABILITY OF STATE – A CONSTITUTIONAL TORT ................................. 11

12. THE GOVERNMENT (Liability in Tort) BILL, 1967 ........................................... 12
13. CONCLUSION ........................................................................................................................... 12
14. BIBLIOGRAPHY ...................................................................................................................... 13

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 INTRODUCTION
Under the English Common Law, the maxim was “The King can do no wrong”
and therefore, the King was not liable for the wrongs of its servants. But, in
England, the position of old Common law maxim has been changed by the
Crown Proceedings Act, 1947, it states that, now the crown is also liable for a
tort committed by its servants just like a private individual.

In India, there is no such statutory provision mentioning the liability of the State.
The law in India with respect to the liability of the State for the tortuous acts of
its servants has become entangled with the nature and character of the role of the
East India Company prior to 1858, but article 300 of constitution came into
effect from 1950.

It specifies that the Union of India or the Government of State can sue or be sued
like any other ordinary person. Same provisions are mentioned under Article 176
of Government India Act, 1935 and also under Article 35 and 65 of the
Government of India Act, 1915 and 1858, respectively.

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 VICARIOUS LIABILITY OF THE STATE
Vicarious liability refers to a situation where someone is held responsible for the
actions or omissions of another person. It is based on the principle of qui facit
per se per alium facit per se, which means, “He who does an act through another
is deemed in law to do it himself”.

Vicarious liability of the state stands for if the state is held vicariously liable
when its employees commit some tort or wrong during the course of their
employment. It is also known as the tortious liability of state. 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.

FUNCTIONS OF THE STATE

In the pre constitutional case, Peninsular and oriental steam navigation
company V. Secretary of state for India, a distinction between sovereign and
non sovereign functions of the state was made.

The principle of this case holds that if any act was done in the exercise of
sovereign functions, the East India Company or the State would not be liable .

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As the facts of the case go, a servant of the plaintiff-company was proceeding on
a highway in Calcutta, driving a carriage which was drawn by a pair of horses
belonging to the plaintiff. He met with an accident, caused by negligence of the
servants of the Government. For the loss caused by the accident, the plaintiff
claimed damages against the Secretary of State for India.
The Supreme Court observed that the doctrine that the ‘King can done wrong’,
was applicable to the East India Company. The company would have been liable
in such cases and the Secretary of State was thereafter also liable .

 SOVERIGN FUNCTION OF THE STATE :

These are the functions of the state for which the state is not liable under any
provision for the wrongful acts of its employees.
EXAMPLE: Maintaining peace and war, Diplomacy, Defence.

 NON SOVERIGN FUNCTION OF THE STATE :

The functions other than the sovereign functions of the state, for which it can be
made liable.
In State of Rajasthan v. Vidyawati, the Rajasthan high Court did not find any
reason to provide immunity to the State, and thus, held the State of Rajasthan
liable for the wrong done by the driver as the driver was performing a non-
sovereign function.
Also, in A.H. Khodwa v. State of Maharashtra, running a hospital was
considered to be a non-sovereign function and hence, the State was made liable
for the negligence committed by the doctor.

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 ACT OF POLICE OFFICIAL
In State of M.P. v. Chironji Lal, the court held that maintaining law and order
including quelling of riot is a sovereign function of the State and thus, it cannot
be made liable for any damage which may be caused while performing such
function.
Police firing compensation – A person died in the irresponsible act of police in
aimlessly firing at the bus, in which the said deceased was travelling as a
passenger. State is vicariously liable to compensate legal representative and
dependent of the deceased.

ACT DONE IN EXERCISE OF SOVEREIGN POWERS

In Union of India v. Harbans Singh, Meals were being carried from the
cantonment Delhi for being distributed in military personnel on duty. The truck
carrying meals belonged to the military department and was being driven by
military driver. It caused an accident resulting in death of a person. In this case
the Punjab High Court came to the conclusion that the state is not liable for
compensation to a person, as the act was being done under a sovereign function.

ACT DONE IN EXERCISE OF SOVEREIGN POWERS

Any non-sovereign function can be performed by the State and an ordinary
person as well. Thus, any wrong committed by State during performance of such
functions, it will be held liable, as was done in the case Union of India v. Savita
Sharma. The Jammu and Kashmir High Court has held that the driving of a
military truck to railway station to bring the jawans to Unit Headquarters is
performing a non sovereign function and, therefore, if the respondent gets
injured while the truck is being so driven, she is entitled to get compensation.

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TORTS COMMITTED BY THE SERVANTS OF THE STATE IN DISCHARGE OF
OBLIGATIONS IMPOSED BY LAW AND IN EXERCISE OF SOVEREIGN FUNCTIONS

Section 2(3) of the Crowns Proceedings Act, 1947 states that if the functions
performed by the officer were conferred upon him by the Common Law or
Statute, and the officer commits a tort, the State will be held liable only if the
instructions were lawfully given to him by the Crown.

In India, tort committed while performing duty in discharge of obligations or

duties imposed by law has been considered as a defence. Thus, in order for the
State to exempt from the liability, it is necessary that the functions exercised by
the Government servant were done by the way of delegation of sovereign power
of the State.

KASTURI LAL v. STATE OF U.P.

In this case, the State was not held liable for the wrong committed by the
constable (a government servant) as it was considered to be the delegation of the
sovereign power. Therefore, the State was exempted from any liability. As, the
plaintiff had been arrested by the police officers on a suspicion of possessing
stolen property.
Upon investigation, a large quantity of gold was found and was seized under the
provisions of the Code of Criminal Procedure. Ultimately, he was released, but
the gold was not returned, as the Head Constable in charge of the maalkhana,
where the said gold had been stored, had absconded with the gold. The plaintiff
thereupon brought a suit against the State of UP for the return of the gold or
alternatively, for damages for the loss caused to him. It was found by the courts

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below, that the concerned police officers had failed to take the requisite care of
the gold seized from the plaintiff, as provided by the UP Police Regulations.
The trial court decreed the suit, but the decree was reversed on appeal by the
High Court. When the matter was taken to the Supreme Court, the court found,
on an appreciation of the relevant evidence, that the police officers were
negligent in dealing with the plaintiff’s property and also, that they had not
complied with the provisions of the UP Police Regulations.

However, the Supreme Court rejected the plaintiff’s claim, on the ground that
“the act of negligence was committed by the police officers while dealing with
the property of Ralia Ram, which they had seized in exercise of their statutory
powers. The power to arrest a person, to search him and to seize property found
with him, are powers conferred on the specified officers by statute and they are
powers which can be properly categorized as sovereign powers. Hence the basis
of the judgment in Kasturi Lal was two-fold – The act was done in the purported
exercise of a statutory power. Secondly, the act was done in the exercise of a
sovereign function.

KASTURILAL BYPASSED :
The decision of the Supreme Court in this case is still valid.

This decision has not been expressly overruled, but, in recent times the
judgments passed thereon have been deviating from the actual judgment passed
in the Kasturi Lal case.

Therefore, under the circumstances in which the State would have been
exempted from liability if this case had been followed, the State has been held
liable in respect of loss or damage either to the property or to the person.

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 LOSS TO PROPERTY
When the property is in the possession of the State officials, there is said to
be the bailment of property, and the State as bailee is considered to be
bound to either:
1. Return the property, or
2. Pay compensation for the property.

LIABILITY OF ELECTRICITY BOARD IN CASE OF ELECTROCUTION

Electricity boards are State run agencies and thus they can be held liable for
any negligence committed on their behalf.
Thus, it is their obligation to take due care by inspecting the supply lines
from time to time, supervise safety of the land and pilferage from the
supply lines.
In H.S.E.B. v. Ram Nath, the Electricity Board was held liable for not
taking timely action to lighten the electric line and also, for not ensuring
that the required distanced was kept between the houses and the wires, even
though the houses were unauthorized.

SOVEREIGN LIABILITY IN RIOTS

It has been held that in order to succeed in his claim for damages caused to
property a person has to establish that by such damage his right to
livelihood has been infringed.
In state of AP v. JK traders of Ramkrishna , the AP High Court ruled that
the writ petitioner could not invoke the public law remedy to claim
damages against the state unless he established that negligence on the part
of the officials of the state had taken away his livelihood.

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 SOVEREIGN IMMUNITY IS SUBJECT TO FUNDAMENTAL RIGHTS

The courts give precedence to the fundamental rights of the people. And so,
everyone is entitled to protect their fundamental rights.
In of Rudal Shah v. State Bihar, the supreme court recognized the liability
of the state to pay compensation under right to life and personnel liberty as
guaranteed under Article 21 of constitution had been violated by officials
of state.
Also, fundamental rights under Article 21 are available to the foreign
nationals as well, which has been already proved in the case, Chairman,
Railway Board v. Chandrima Das.

LIABILITY OF STATE – A CONSTITUTIONAL TORT

It is a duty of the State to ensure that fundamental rights of people are

protected, there is maintenance of law and order, crime is prevented and
there is prosecution of the accused if any crime has been committed.
As the court held the state liable to provide free and full medical aid as
compensation to the victim for injury caused by the private person, as per
new horizon of constitutional tort, in case of Ramjan v. State of Rajasthan.
Hence, claim for compensation for unconstitutional deprivation of
fundamental right is a rightful claim which is based on strict liability.

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THE GOVERNMENT (Liability in Tort) BILL, 1967
The foregoing Bill was introduced in the Lok Sabha in 1969. The bill was
reported by the Joint Committee of both the Houses of Parliament. It hasn’t
become a law as of yet but seeks to define the liability of the Government
towards the third parties for the wrongs of its servants, agents and
independent contractors employed by it as it wouldn’t be appropriate for
the State in these circumstances to continue to raise the plea of “sovereign
power” or of “sovereign immunity” to escape its liability in tort.

CONCLUSION
It is unfortunate that it is not very satisfactory position of law. The remedy
to cure this position, however, lies in the hands of legislature. The
recommendation of the Law Commission made long back, and the
suggestions made by the Supreme Court, have not yet been given effect to.
The unsatisfactory state of affairs in this regard is against social justice in a
welfare State. It is hoped that the Act regarding State liability will be
passed without much further delay.

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 BIBLIOGRAPHY
 Law of Torts including compensation under the Motor Vehicles Act and
Consumer Protection Laws by DR. R.K. BANGIA

 http://www.legalserviceindia.com/

 https://indiankanoon.org/

 https://www.lawctopus.com/

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