TORTIOUS LIABILITY OF STATE

Introduction
 Tortious liability arises from an infringement of an obligation that is
essentially settled by law: this obligation is to people in general and its
infringement is remediable through unliquidated damages.
 The maxim ‘Ubi Jus Ibi Remedium’ ignited the development of the Law
of Torts and the torts submitted by people against one another
whereas perceived in custom-based law.

Origin

 According to Roman law, as the state was Sovereign, it was not held
liable in torts towards its subjects. It was considered to be a
characteristic of Sovereignty that it can’t be sued in its courts without
its assent.
 In England, the Crown believed in tortious liability insusceptibility.
During the post-constitutional period, Welfare State logic’s approach
prompted the all-overrunning state mediation and diminishing
refinement between the public and private capacity of the state. The
State was a juristic person acting through its authorities and operators
suitable under law. The insusceptibility, however, was limited to
traditional State elements such as legislation, equity organization, war,
settlement making, and expectation of wrongdoing.
 The issue of State Liability in Torts has now taken on exceptional
importance. The principle of welfare state establishes a link between
the individual’s rights and the State’s obligations.

Liability of administration in tort

 State liability refers to the liability of the state arising from the acts of
omission/ commission committed by its servants. It has been
governed by written or unwritten laws and is not a static concept.
 The State’s liability for the tortious acts of its servants, known as the
tortious liability of the State, makes it liable, voluntarily or
involuntarily, for acts of omission and commission, and puts it before
the Court of Law in a claim for unliquidated damages to such acts.

LEGAL FRAMEWORK
English law – In England, the Crown’s outright insusceptibility was
acknowledged under precedent-based law. The administration depended on
the maxim “the King can’t be blamed under any circumstance”. In 1863,
in Tobin v. R., the court observed: “if the Crown were at risk in tort, the rule
might have appeared to be insignificant”. In 1947 the Crown Proceeding Act
was enacted which put the Government in an indistinguishable position from
a private person’s view. 

Indian Law – 

 The maxim ‘the king can’t be blamed under any circumstance’ was
never acknowledged in India. The government’s absolute
insusceptibility was not understood in the Indian legal system before
the constitution’s beginning and in numerous cases, the government
was subjected to its employees’ convoluted actions.
 According to Article 294(4) of the Constitution, the liability of the
Government of the Union or a Government of the State can arise ‘from
some contract or other.’
  Article 12 of the Indian Constitution defines the term ‘state’.
 Under Article 300 (1), the degree of such liability is settled. It states
the Union of India or State Government’s liability to be the same as
that of Dominion of India and the Provision before the Constitution
commenced.

Article 300 of Indian Constitution talks about the tortuous liability of the
State-

(1) The Governor of India may sue or be sued by the name of the Union
and the Government of a State may sue or be sued by the name of the
State and may, subject to any provisions which may be made by Act of
Parliament or of the Legislature of such State enacted by virtue of powers
conferred by this Constitution, sue or be sued in relation to their
respective affairs in the like cases as the Dominion of India and the
corresponding Provinces or the corresponding Indian States might have
sued or been sued if this Constitution had not been enacted

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a
party, the Union of India shall be deemed to be substituted for the
Dominion in those proceedings; 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.

 Article 299 of Indian Constitution talks about the contractual

liability of state

(1) All contracts made in the exercise of the executive power of the
Union or of a State shall be expressed to be made by the President,
or by the Governor of the State, as the case may be, and all such
contracts and all assurances of property made in the exercise of
that power shall be executed on behalf of the President or the
Governor by such persons and in such manner as he may direct or
authorise

(2) Neither the President nor the Governor shall be personally liable
in respect of any contract or assurance made or executed for the
purposes of this Constitution, or for the purposes of any enactment
relating to the Government of India heretofore in force, nor shall
any person making or executing any such contract or assurance on
behalf of any of them be personally liable in respect thereof

PRINCIPLES UNDERLYING CONTRACTUAL LIABILITY OF STATE

Respondeat Superior  (Let the principal be liable)

Respondent Superior (Let the master answer) was brought to the premise of

the subordinates’ limited economic capacity, and the irresponsible behaviour
of superiors such as masters or employers was controlled. This doctrine is
based on public policy since it aims to assign the risks usually associated
with it to the business. When applying this doctrine, an employer and the
master are liable for the negligent commissions or omissions of an employee
and the servant which occur during employment. Nevertheless, a
relationship between the superior and the subordinate should be established
for the liability to fall upon the superiors.

Actions performed by the subordinates during their jobs or agency under an

employer or a master’s explicit or implied authority, respectively. There are
two requirements of the doctrine:

 A true master-servant and employer-employee relationship. 

 The tortious act of a servant and an employee must be one within
the scope of his employment. The ‘scope of employment’ refers to
the act performed under the express or implied authority of the
superiors.
In the case of Automobiles Transport vs. Dewalal and ors, the Rajasthan
High Court held that there is always the presumption that a vehicle is driven
on the order of the driver, or by his approved agent or servant, and it is up
to the appellant to prove that such presumption is unjustified and not
confirmed. In the case of Smt. Savita Garg vs. The Director, National Heart
Institute, the Supreme Court held that, in the employment contract, the
hospital is the principal responsible for the actions of the agent, i.e. one of
his doctors, if the court and the complainant are unable to justify that there
was no negligence or recklessness on their part and that they were acting
with due care and caution.

Qui-Facit per Alium Facit per se  (He who acts through another does

it himself).

Qui facit per alium facit per se is a fundamental statutory maxim of agency
law. It is a maxim frequently stated when discussing the employer’s liability
for the employee’s actions as regards vicarious liability. According to this
maxim, by employing servants the master is obliged to perform the duties,
he is responsible for their actions in the same way as he is responsible for
his actions. Indirectly, in the role portrayed by the agent, the concept is in
practice or present such that the role performed is seen as the work of the
agent himself. Anything that a principal can do for itself can be done through
an agent. The exception to that maxim would be personal acts of nature.

In H.E. Nasser Abdulla Hussain vs. Dy. City a tenet of law canonized the
dictum: “Qui facit per alium facit per se”. It was held in the case
of Ballavdas Agarwala vs. Shri J. C. Chakravarty, that the sections
vicariously fastened the responsibility on the masters for the acts of the
servants. In K.T.M.S. Mohd. And Anr vs. Union Of India, it was held that the
Indian Income-tax Act is a self-contained Code, which is exhaustive of the
matters dealt with and its provisions portray an intention to depart from the
common rule of Qui facit per alium facit per se.

Compensation by State

According to section 70 of the Indian Contract Act, if a person is lawfully

doing anything for another person or delivering anything to him the other
person enjoys the profit thereof, the latter is obliged to indemnify the former
or restore the thing so done or delivered to him. If Section 70’s conditions
are met, then the government would be liable to pay compensation for the
work performed or services rendered by the state. Section 70 is not based
on a subsisting contract between the parties but a quasi-contract or
restitution basis. This encourages an individual selling goods or providing
services not for free to demand compensation from the person receiving the
value of the same. This is a duty that exists on equal grounds and it does
not appear to be explicit agreement or contract.

If the agreement with the Government is null and void according to Article
299(1), the party obtaining the advantage under that agreement is obliged
to restore it or indemnify the individual from whom it was obtained.
Therefore, if a contractor agrees with the government to construct the down
payment received and the agreement is found to be void as the conditions of
Article 299(1) have not been met, the government may recover the amount
advanced to the contractor according to Section 65 of the Indian Contract
Act. Section 65 provides that if an agreement is found to be invalid or a
contract is invalid, any person who has received any benefit under such
agreement or contract is obliged to restore it and compensate the person
from whom it was received.

In Bhim Singh v. the State of J&K, where the petitioner, a member of the

Legislative Assembly, was arrested while he was travelling to Srinagar to
attend the Legislative Assembly in gross violation of his constitutional rights
under Article 21 and Article 22(2) of the Constitution, the court granted the
petitioner monetary compensation of Rs. 50,000 by way of exemplary costs.
In Lucknow Development Authority v. M.K. Gupta, the Supreme Court
observed that when the public servant causes injustice and pain to the
common man mala fide, and capricious acts while discharging official duties,
it makes the State liable to pay damages from public funds to the aggrieved
individual. The State is constitutionally obliged to recover the reimbursement
sum from the public servant in question.

Pertinent case laws

Under East India Company, the first judicial definition of State Liability was
made in the case of John Stuart, 1775. It was decided for the first time that
in cases concerning the dismissal of Government Servants, the Governor-
General in Council had no exemption from the jurisdiction of the Court.
In Moodaly v. The East India Company, the opinion that the Common law
doctrine of sovereign immunity did not apply to India was expressed by the
Privy Council.

Pre-Constitution judicial decisions

 Peninsular and Oriental Steam Navigation Company v. Secretary:

The rule that was deduced in this case states that the East India
Company(State) is excluded from the risks arising due to any action
taken in the operation of sovereign capacities. It drew a significantly
strong distinction between state sovereign and non-sovereign
elements. 
 Secretary of State v. Hari Bhanji: The Madras High Court ruled that
the invulnerability of the State should be kept to state activities.
The decision did not go beyond state actions in the P and O Cases
while providing representations of circumstances where the
invulnerability was available. 

Post-Constitution judicial decisions

 State of Haryana v. Santra: It was held that there was negligence

on the state responsibility standards. Henceforth, when the
negligence occurred, it added up to behave in the absence of
integrity, therefore the State could not use the defense of sovereign
resistance. It was also held that negligence by professionals who
have an obligation cannot escape the responsibility by asserting the
solicitor’s assent guard.
 State of Rajasthan v. Vidyawati: The case dealt with whether the
State was at risk for its hireling’s tortious act – The Court held that
the State’s liability to its worker’s tortious act within the scope of its
 business and to work in that capacity was similar to that of some
other manager.
 Kasturi Lal v. The State of UP: The decision for this situation was
given holding that the act, which offered to ascend to the present
claim for damages, was presented throughout its business by the
respondent’s representative. That work had a place with a class of
sovereign power evacuating any State-related liability.
 In Kesoram Poddar v. Secretary of State for India, the Supreme
Court’s decision created a significant state immunity requirement in
tort based on the principles of sovereign and non-sovereign duties.
It decided that immunity can only be claimed for State action if the
act in question was done in the course of exercising sovereign
functions.
 In the case of Union of India v. Harbans Singh, it was deduced that
damages can’t be recovered when a man was assassinated due to
an obligatory military driver’s rash and careless driving of a military
truck, because it was a sovereign capacity. In the case of Secretary
of State v.Cockraft, the offended party was hurt by the reckless
removal of a pile of rock from the military street he was walking
over. The lawsuit against the government was not viable in the light
of the fact that the military and military street maintenance were a
sovereign rather than a private capacity.