VICARIOUS LIABILITY OF THE

STATE

SUBJECT: LAW OF TORTS

SUBMITTED TO: SUBMITTED BY

MRS. MANJEET KAUR SIMARPREET SINGH
ROLL NO. 29
B.A. LL.B. (SEC A)

1
 TABLE OF CONTENTS

VICARIOUS LIABILITY OF THE STATE............................................................................................ 1

TABLE OF CONTENTS ........................................................................................................................... 2
ACKNOWLEDGEMENT .......................................................................................................................... 3
TABLE OF CASES..................................................................................................................................... 4
VICARIOUS LIABILITY: AN INTRODUCTION................................................................................. 6
VICARIOUS LIABILITY OF THE STATE: INTRODUCTION ......................................................... 8
PRE-CONSTITUTION JUDICIAL DECISIONS:................................................................................ 10
POST CONSTITUTION JUDICIAL DECISIONS ............................................................................... 12
CONCLUSION ......................................................................................................................................... 22

BIBLIOGRAPHY…………………………………………………………………..23

2
 ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep
regard to my teacher, for her exemplary guidance, valuable feedback and constant
encouragement throughout the duration of the project. Her valuable suggestions
were of immense help throughout my project work. Her perceptive criticism kept
me working to make this project in a much better way. Working under was an
extremely knowledgeable experience for me. Also I would like to express my
gratitude to my friends and family for their constant support.

SIMARPREET SINGH

3
 TABLE OF CASES

N. Nagendra Rao v. State of AP AIR 1994 SC 2663…..........................8

Peninsular and Oriental Steam Navigation Company

v. Secretary of State for India (1861) 5 Bom. H.C.R. App. I,p.1…….10

P. & O. Steam Navigation Co. v. Secretary of State

5 Bom HCR App. 1…………………………………………………..11

Nobin Chandra Dey v. Secretary of State for India I.L.R. 1 Cal. 11….11

Secretary of State v. Hari Bhanji ILR (1974) II Delhi 637……………11

Kishanchand v. Secretary of State ILR (1974) II Delhi 637……….11

State of Haryana v. Santra 2000 (1) CPJ 53 (SC)………………......12

The Joint State of Rajasthan v. Vidyawati AIR 1962 SC 933……..14

Kasturi Lal v. State of U.P AIR 1965 S.C 1039……………………16

State of M.P. v. Chironji Lal A.I.R 1981 M.P. 65……………….. ….17

Satyawati Devi v. Union of India A.I.R 1967 Delhi 98…………………17

Union of India v. Sugrabai A.I.R 1969 Bom 13………………………17

Bhim Singh v. State Of Jammu And Kashmir 1985 (2) SCALE 1117..18

Rudal Shah v. State of Bihar 1983) 4 SCC 141………………………18

Saheli v. Commissioner of Police A.I.R 1990 S.C. 513………………..18

4
AIR 2000 SC 988 : (2000) 2 SCC 465………………………………21

State of Gujarat v. Haji Memon A.I.R. 1967 S.C…………………...21

Basava Kom Dyamgonde Patil v. State of Mysore AIR 1977 SC…..21

5
 Vicarious Liability: An Introduction

Vicarious liability is a form of strict, secondary liability that arises under the
common law doctrine of agency – respondeat superior – the responsibility of the
superior for the acts of their subordinate, or, in a broader sense, the responsibility
of any third party that had the "right, ability or duty to control" the activities of a
violator. The liability is placed, not on the tortfeasor, but rather on someone who is
supposed to have control over the tortfeasor.

The most common form of vicarious liability that we come across is the liability
arising out of a ‘Master – Servant’ relationship. This is sometimes referred to as
the doctrine of "RESPONDEAT SUPERIOR" (in which the MASTER - the
archaic term for an employer - must respond for the torts of its SERVANTS - the
archaic term for employees). The principle says that a master is jointly and
severely liable for any tort committed by his servant while acting in the course of
his employment. As Lord Brougham said: “The reason that I am liable is this, that
by employing him I set a whole thing in motion; and what he does, being done for
my benefit and under my direction, I am responsible for the consequences of doing
it.” This implies that the liability for the injured party’s loss is properly shifted to
the person or entity whose enterprise was benefited by the relationship, and created
the occasion for the wrongdoer’s act or omission.

When a servant commits a tort in the course of his employment, the master is very
often guilty of what German lawyers call “Culpa in eligendo” or “Culpa in
inspiciendo” In order that the doctrine of vicarious liability may apply, the
conditions that need to be fulfilled are that firstly, the relationship of master and
servant must exist between the defendant and the person committing the wrong
complained of. Secondly, the servant must in committing the wrong have been
acting in the course of his employment.1

1
S.Ramaswamy Iyer, The Law of Torts 489 (The Madras Law Journal Office, 6th ed., 1965)

6
 The common examples of such a liability are:

 Liability of the principal for the tort of his agent;

 Liability of partners of each other’s tort;

 Liability of the master for the tort of his servant.

 Liability of the State or Liability of the Administration.

Constituents of Vicarious Liability2:

 So the constituents of vicarious liability are:

 There must be a relationship of a certain kind.

 The wrongful act must be related to the relationship in a certain way.

 The wrong has been done within the course of employment.

2
Dr. R.K. Bangia, Law of Torts 79 (Allahabad Law Agency, 8th edn., 2015)

7
Vicarious Liability of the State:
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. Earlier, the King could not be sued in tort either for wrong
actually authorised by it or committed by its servants, in the course of their
employment. With the increasing functions of State, the Crown Proceedings Act
had been passed, now the Crown is liable for a tort committed by its servants just
like a private individual. Similarly, in America, the Federal Torts Claims Act, 1946
provides the principles, which substantially decides the question of liability of
State.

In ancient India, under the Hindu jurisprudence, it was an undisputed principle that
no one is exempted from the operation of law. This liability to equal punishment
extended even to the king, relative of the king, a judge or an ordinary citizen. The
rule of law was considered supreme and binding on everyone alike. The important
functions of the king were concerned with protection of people, punishment of
crimes and maintenance of dharma or social order.3

In the medieval Indian history the personal liability of officers for their wrongs was
more vogues with evidences showing equality between the ruler and the ruled
subject. Only when the king considered it proper to undertake the burden of public
officer, it was then the state treasury used to pay the compensation. Dharma was
considered the administrative law binding the king as well as the subjects. Both in
Hindu law and Muslim law, the rulers themselves administered justice as far as
possible and the rest was done by the exceptionally learned and honest judges. The
most significant recent trend has been an assertion on the part of the court that it
has a power to grant compensation. The principle of personal liability of public
servants for wrongs done to citizens is already a part of Indian law based on
English case laws.

Presently State liability in India is defined by the Article 300(1) of the Constitution

3
Ratanlal and Dhirajlal, The Law of Tort (Wadhwa and Co. 122nd ed., 1992)

8
that originated from Section 176 of the Government of India Act, 1935. This could
be traced back from the Section 32 of the Government of India Act, 1915, the
genesis of which can be found in Section 65 of the Government of India Act, 1858.
It will thus be seen that by the chain of enactment beginning with the Act of 1858,
the Government of India and Government of each State are in line of succession of
the East India Company. In other words, the liability of the Government is the
same as that of the East India Company before, 1858.

Sovereign functions:
Sovereign functions are those actions of the state for which it is not answerable in
any court of law. For instance, acts such as defence of the country, raising and
maintaining armed forces, making peace or war, foreign affairs, acquiring and
retaining territory, are functions which are indicative of external sovereignty and
are political in nature. Therefore, they are not amenable to jurisdiction of ordinary
civil court. The State is immune from being sued, as the jurisdiction of the courts
in such matters is impliedly barred.

The distinction between sovereign and non-sovereign functions was considered at

some length in N. Nagendra Rao v. State of AP4. All the earlier Indian decisions on
the subject were referred to. The court enunciated the following legal principles, in
its judgment:

In the modern sense, the distinction between sovereign or non-sovereign power

thus does not exist. It all depends on the nature of the power and manner of its
exercise. Legislative supremacy under the Constitution arises out of constitutional
provisions. The legislature is free to legislate on topics and subjects carved out for
it. Similarly, the executive is free to implement and administer the law. A law
made by a legislature may be bad or may be ultra vires, but, since it is an exercise
of legislative power, a person affected by it may challenge its validity but he
cannot approach a court of law for negligence in making the law. Nor can the
Government, in exercise of its executive action, be sued for its decision on political
or policy matters. It is in public interest that for acts performed by the State, either
in its legislative or executive capacity, it should not be answerable in torts. That
would be illogical and impractical. It would be in conflict with even modern
notions of sovereignty.
4
AIR 1994 SC 2663

9
Pre-Constitution Judicial Decisions:
 Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India5

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 State6. 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. 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 travelling 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
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 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 lndia 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:

 as a sovereign power and

 as a trading company.
5
(1861) 5 Bom. H.C.R. App. I,p.1
6
5 Bom HCR App. 1

10
The liability of the Company could only extend to in respect of its commercial
dealings and not to the acts done by it in exercise of delegated sovereign power. In
the present case, the damage was done to the plaintiff in the exercise of 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.

 Nobin Chandra Dey v. Secretary of State for India7

This doctrine of immunity, for acts done in the exercise of sovereign functions,
was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of
State. The plaintiff in this case contended that the Government had made a contract
with him for the issue of a licence for the sale of ganja and had committed breach
of the contract. The High Court held that upon the evidence, no breach of contract
had been proved. Secondly even if there was a contract, the act had been done in
exercise of sovereign power and was thus not actionable.

 Secretary of State v. Hari Bhanji 8

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
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.
This view was re-iterated in Ross v. Secretary of State. The Allahabad High Court
took a similar view in Kishanchand v. Secretary of State.9

However, in Secretary of State v. Cockraft10, making or repairing a military road

was held to be a sovereign function and the Government was held not liable, for
the negligence of its servants in the stacking of gravel on a road resulting in a

7
I.L.R. 1 Cal. 11.
8
ILR (1882) 5 Madras 273
9
ILR (1974) II Delhi 637
10
AIR 1915 Mad. 993; (1916) ILR 39 Mad. 351

11
carriage accident that injured the plaintiff.

Other such cases :

In the Bombay case of Rao v. Advani, it was held that the Madras view in the Hari
Bhanji case was correct. The Bombay case was not one of a claim to damages for
tort, but related to a petition for certiorari to quash a Government order for the
requisitioning of property, as proper notice had not been given. On appeal, the
Supreme Court, in the case of State of Bombay v. Khushaldas Advani11, reversed
the High Court, holding that natural justice was not required to be observed, before
requisitioning any property.

Post Constitution Judicial Decisions

 State of Haryana v. Santra12

The ratio of this case was on the principles of state liability for negligence. Here
it was clearly established that the doctor while performing the operation was
acting as a government servant and acting in the course of employment of the
government. Hence when there was negligence, it amounted to acting in bad
faith, and so the defence of sovereign immunity could not be used by the state.
Moreover it was also held that such negligence which could have been
perceived by a professional who had a duty to do so should take into
consideration these matters and cannot escape liability by claiming defence of
consent by the petitioner.

The respondent in the above case was a poor lady who went under a
sterilization operation at the General Hospital, Gurgaon, as she already had
seven children and wanted to take advantage of the family planning scheme
launched by the State Government of Haryana. Smt. Santra was informed that
she would not conceive in future. Smt. Santra approached the Chief Medical
Officer, Gurgaon, for her sterilization in 1988. But she gave birth to a female
child. This led her to file a suit claiming Rs. 2 lakhs as damages for medical
negligence due to “failed sterilization” which was decreed for a sum of Rs.
54,000/- with interest at the rate of 12 per cent per annum from the date of
institution of the suit till the payment of the decretal amount. Two appeals were
11
AIR 1950 Supreme Court 222
12
2000 (1) CPJ 53 (SC)

12
filed against this decree in the court of District Judge, Gurgaon, which were
disposed of by Addl. District Judge, Gurgaon, by a common judgment dated
10.5.1999. Both the appeals - one filed by the State of Haryana and the other by
Smt. Santra were dismissed. The second appeal filed by the State of Haryana
was summarily dismissed by the Punjab & Haryana High Court on 3.8.1999.

There are two major issues involved in the case. One is that there was
negligence on the part of the doctor who operated on her as the operation was a
failure. Moreover as the operation took place in a Government Hospital, the
state should be vicariously liable for the negligent act of its servant in the
course of employment. This law also deals with the Hindu Adoptions and
Maintenance act, 1956, Ss.20 and 23.the principle involved for the above claim
is the vicarious liability of the state for the negligence of its doctors.

In reply to the claim of compensation of Rs. 2 lakhs by the respondent, the

officers defending the state argued that during the time of the operation only the
right Fallopian tube was operated on and the left tube was left untouched. The
appellants also argued that the negligence on the part of the doctors would not
make the state vicariously liable and that the damages paid to her for the
maintenance of the child could not be decreed as there was no element of tort
involved. It was further pleaded that Smt. Santra had herself put her thumb
impression on a paper containing a recital that in case the operation was not
successful, she would not claim any damages. It was pleaded that she was
estopped from raising the plea of negligence or from claiming damages for an
unsuccessful sterilization operation from the State.

After the District Court dismissed the matter giving a compensation of Rs

54,000 and an interest rate of 12% per annum, the State filed a suit in the
Supreme Court challenging the decision. Due to the failure of the operation and
the conceivement of the child, the respondent had filed a suit claiming for
damages worth Rs. 2 lakhs for the maintenance of the child and herself as she
already as seven children. The respondent claimed that if she had offered
herself for complete sterilization operation, both the Fallopian tubes should
have been operated upon. The doctor who performed the operation acted in the
most negligent manner.

Moreover she also stated that as the operation was carried out in a government
hospital and the doctor being a government servant, the state was vicariously
liable for the act of the doctor as a servant of the State.

13
 The explanation given by the appellants for absence of state liability was
rejected by the trial court which the suit for a sum of Rs. 54,000 with pendate
lite and future interest at 12% per annum. The decision was confirmed by the
Appellant Court and State High Court. The trial court as also the lower
appellate court both recorded concurrent findings of fact that the sterilisation
operation performed upon Smt. Santra was not 'complete' as in that operation
only the right Fallopian Tube was operated upon while the left Tube was left
untouched. The courts were of the opinion that this exhibited negligence on the
part of the Medical Officer who performed the operation. Smt. Santra, in spite
of the unsuccessful operation, was informed that sterilisation operation was
successful and that she would not conceive any child in future. The plea of
estoppel raised by the defendants was also rejected. The amount of Rs. 54,000/-
which has been decreed by the courts below represents the amount of expenses
which Smt. Santra would have to incur at the rate of Rs. 2,000/- per annum in
bringing up the child up to the age of puberty.

Having regard to the above facts the court said that Smt. Santra was entitled to
full compensation from the State Government and appeal was dismissed but
without any order as to cost.

Post Judgement Developments:

In case of any medical negligence, if the doctor acting in the course of
employment of the Government Hospital, the Government is liable for the
negligent act as it come under the preview of State Liability. In the case of State
of Punjab v. Shiv Ram & ors.13, cause of action for claiming compensation in
cases of failed sterilization operation arises on account of negligence of surgeon
and not on account of child birth.

In the case of The Joint Director of Health Services v. Sahai14, death of patient
occurred due to negligence in carrying out operation. The post-operation
treatment done by defendant No. 2 was not proper. Defendant No. 1
unauthorized delegated function to defendant No. 2 who removed stitches of
patient without taking precautions and thus due to negligence of defendants No.
1 and 2 patient died. Following the same principle of infringement of Right to
Life, State was held vicariously liable for damages on account of negligence of
its doctors or other employees. Again in the case of Dr. M.K.Gaurikutty v. M.K.
Raghavan, proper care was not taken by defendants due to which damage to

13
JT 2005 (7) SC 606
14
AIR 2000 Mad. 305

14
 brain not avoided. Patient was admitted to hospital for purpose of treatment but
patient was not particular about doctor. Due to negligence of doctor or staff any
mishap happens hospital authorities responsible. Government could not produce
any record to show that there was no negligence, hence State was held
vicariously liable

 State of Rajasthan v. Vidyawati 15

The respondents filed a suit for the damages made by an employee of a State and
the case questioned whether the State was liable for the tortious act of its servant –
The Court held that the liability of the State in respect of the tortious act by its
servant within the scope of his employment and functioning as such was similar to
that of any other employer.

It was held in this case that the State should be as much liable for tort in respect of
tortuous acts committed by its servant within the scope of his employment and
functioning as such, as any other employer.

The facts of this case may shortly be stated as follows. In that case, the claim for
damages was made by the dependants of a person who died in an accident caused
by the negligence of the driver of a jeep maintained by the Government for official
use of the Collector of Udaipur while it was being brought back from the workshop
after repairs. The Rajasthan High Court took the view-that the State was liable, for
the State is in no better position in so far as it supplies cars and keeps drivers for its
Civil Service. In the said case the Hon’ble Supreme Court has held as under:

“Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”

In the aforesaid case, the Hon’ble Apex Court while approving the distinction
made in Steam Navigation Co.’s case between the sovereign and non-sovereign
function observed that the immunity of crown in the United Kingdom was based
on the old feudalistic notions of Justice, namely, that the King was incapable of
doing a wrong. The said common law immunity never operated in India.

15
AIR 1962 SC 933

15
  Kasturi Lal v. State of U.P.16

The ruling in this case was given holding that the act, which gave rise to the
present claim for damages, has been committed by the employee of the respondent
during the course of its employment. Also, that employment belonged to a
category of sovereign power. This removed any liability on the part of the state. In
this case, 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 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.

 State of M.P. v. Chironji Lal 17

A new question came before the court relating to the payment of damages for the
loss caused by the lathi-charge of the police in a situation where it was
unauthorized and unwarranted by law. It was alleged that the police resorted to
lathi-charge willfully and without any reasonable cause and thus damaged the
plaintiff’s property. The claim was rejected on the ground that the function of the
state to regulate processions and to maintain law and order is a sovereign function.

16
AIR 1965 S.C 1039 at 1046
17
A.I.R 1981 M.P. 65.

16
  Satyawati Devi v. Union of India18

The Delhi High Court held that the carrying of a hockey team in a military truck to
the Air Force Station to play a match is not a sovereign function. In this case an
Air Force vehicle was carrying hockey team of Indian Air Force Station to play a
match. After the match was over, the driver was going to park the vehicle when he
caused the fatal accident by his negligence. It was argued that it was one of the
functions of the Union of lndia to keep the army in proper shape and tune and that
hockey team was carried by the vehicle for the physical exercise of the Air Force
personnel and therefore the Government was not liable. The Court rejected this
argument and held that the carrying of hockey team to play a match could by no
process of extension be termed as exercise of sovereign power and the Union of
lndia was therefore liable for damages caused to the plaintiff.

 Union of India v. Sugrabai 19

The Bombay High Court held that the transporting of military equipment from the
workshop of the Artillery School is not a sovereign function.

The Bombay High Court overruled the plea of sovereign immunity when a military
driver driving a motor truck carrying a Records Sound Ranging machine from
military workshop to military school of artillery killed a cyclist on the road. It was
held that the driver was not acting in exercise of sovereign powers. The Bombay
High Court observed in following words:

“Sovereign powers are vested in the State in order that it may discharge
its sovereign functions. For the discharge of that function one of the sovereign
powers vested in the State is to maintain an army. Training of army personnel can
be regarded as a part of the exercise of that sovereign power. The State would
clearly not be liable for a tort committed by an army officer in the exercise of
that sovereign power. But it cannot be said that every act which is necessary for
the discharge of a sovereign function and which is undertaken by the State involves
an exercise of sovereign power. Many of these acts do not require to be carried out
by the State through its servants. In deciding whether a particular act was done by
a Government servant in discharge of a sovereign power delegated to him, the
proper test is whether it was necessary for the State for the proper discharge of
its sovereign function to have the act done through its own employee rather than
through a private agency.”

18
A.I.R 1967 Delhi 98.
19
A.I.R 1969 Bom 13.

17
  Khatri(II) v. State of Bihar 20

An important question was raised regarding liability of government for wrongful

arrest and detention. Moving ahead in the direction of 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 have not signed 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.

 Rudal Shah v. State of Bihar 21

In this case it was laid down a most important principle of compensation against
government for the wrong action of its official the important judgement was
handed down by the Supreme Court against the Bihar Government for the
wrongful and illegal detention of Rudal Shah in Muzaffarpur jail for as many as 14
yrs after he was acquitted by the Sessions Court in June 1968. The Court ordered
compensation of Rs 30,000 for the injustice and injury done to Rudal Shah and his
helpless family.

 Bhim Singh v. State Of Jammu And Kashmir22

In this case the Court awarded exemplary cost of Rs 50,000 on account of the
authoritarian manner in which the police played with the liberty of the appellant.

 Saheli v. Commissioner of Police 23

Saheli v. Commissioner of Police was another milestone in the evaluation of

compensation urisprudence in writ courts. The masterpiece judgement in
Vidyawati, which was freezed by asturi Lal was rightly quoted in this case. The
State was held liable for the death of nine year old child by Police assault and
beating. Delhi Administration was ordered to pay compensation of Rs. 75000/-.
The significance of this case is that firstly, the revival of Vidyawati ratio and
secondly that the Delhi Administration was allowed to recover money from those
officers who are held responsible for this incident.

20
(1981) 1 SCC 627.
21
(1983) 4 SCC 141.
22
1985 (2) SCALE 1117.
23
A.I.R 1990 S.C. 513

18
  Common Cause, A Registered Society v. Union of India24

The Supreme Court emphatically stressed that Kasturi Lal case, apart from being
criticized, not been followed by the Court in subsequent cases, and therefore, much
of its efficacy as a binding precedent has been eroded. In this case the entire
history relating to the institution of suits by or against the State or, to be precise,
against Government of India, beginning from the time of East India Company right
up to the stage of Constitution, was considered and the theory of immunity was
rejected. In this process of judicial advancement, Kasturi Lal’s case has paled into
insignificance and is no longer of any binding value.

 N. Nagendra Rao v. State of A.P. 25

In this case, the Supreme Court held that when due to the negligent act of the
officers of the state a citizen suffers any damage the state will be liable to pay
compensation and the principle of sovereign immunity of state will not absolve
him from this liability. The court held that in modern concept of sovereignty the
doctrine of sovereign immunity stands diluted and the distinction between
sovereign and non sovereign functions no longer exists. The court noted the
dissatisfactory condition of the law in this regard and suggested for enacting
appropriate legislation to remove the uncertainty in this area. Rejecting the
contention of the state the Supreme Court held that the state was liable vicariously
for the negligence committed by its officers in discharge of public duty conferred
on them under a statute. As regards the immunity of the state on the ground of
sovereign function, the court held that the traditional concept of sovereignty has
undergone a considerable change in the modern times and the line of distinction
between sovereign and non sovereign powers no longer survives. No civilised
system can permit an executive as it is sovereign. The concept of public interest
has changed with structural change in the society. No legal system can place the
state above law as it is unjust and unfair for a citizen to be deprived of his property
illegally by negligent act of the officers of the state without remedy. The need of
the state to have extraordinary powers cannot be doubted. But it cannot be claimed
that the claim of the common man be thrown out merely because the act was done
by its officer even though it was against law. Need 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. In welfare state, functions of the state are not only
defence of the country or administration of justice or maintaining law and order but
it extends to regulating and controlling the activities of the people in almost every

24
AIR 1996 SC 3538
25
AIR 1994 SC 2663

19
sphere. The demarcation between sovereign and non sovereign powers for which
no rational basis survives has largely disappeared. The court further said that
sovereign immunity was never available if the state was not involved in
commercial or private function nor it is available where its officers are guilty of
interfering with life and the liberty of a citizen not warranted by law. In both the
cases the state is vicariously liable to compensate. The doctrine of sovereign
immunity has no relevance now when the concept of sovereignty has itself
undergone a major change. Sovereignty is now with the people. The people of India
made the Constitution and gave it to themselves. The structure and functions of the
state have been created and constituted to serve the people. Accordingly the state
is liable for negligence of its officers. Further, in a large number of cases the courts
have ordered the Government to pay compensation to the victims of torture for
violation of their fundamental right guaranteed by Article-21 of the Constitution.

 Chairman, Railway Board v. Chandrima Das 26

In this case, the Supreme Court held that the functions of the State not only relate
to the defence of the country or the administration of justice, but they extend to
many other spheres e.g. education, commercial, social, economic, political etc.
These activities cannot be said to be related to sovereign power.

 State of Gujarat v. Haji Memon 27

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 a ordinary man would take care of his own
goods under similar circumstances. The state 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 28

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
26
AIR 2000 SC 988 : (2000) 2 SCC 465
27
A.I.R. 1967 S.C.
28
AIR 1977 SC

20
that when there was no prima facie defence 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.

21
Conclusion
In all the cases discussed before, the entity sought to be made liable is not the
government but the State. So far as the government is concerned, it may well say
that the statutory authority is neither accountable nor subordinate to it. Hence the
government cannot be visited with the consequences flowing from a wrong order
made by a statutory authority. As far as the State is concerned, it cannot put
forward any such plea inasmuch as the statute is enacted by it by Legislature. The
appointment of the authority is also done either by the Statute itself or by such
authority as may be authorised by the Statute. The act of the statutory authority in
such a case is an act done for and on behalf of the State. Hence the state is held
liable. State’s liability for the acts or omissions of statutory authorities arises only
in cases where the statutory authority acts outside his legal authority while
purporting to act pursuant to the legal authority conferred upon him and the act or
omission, which causes or results in damage to a person, is not within the ambit of
the statutory protection, if any, contained in such enactments. This rule is evolved
for the obvious reason that an act done under a statute and in accordance with the
statute can never amount to a tort as was said by the Supreme Court by following
cases. The Court said “A result flowing from a Statutory provision is never an
evil”. “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
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.”

22
 BIBLIOGRAPHY
Books
 Dr. R.K. Bangia, Law of Torts, 8th ed.
 Fleming, John G. The Law of Torts, 5th ed
 Ratanlal and Dhirajlal, The Law of Tort, 22nd ed.
 Desai, S.K. & Desai, Ramaswamy Iyer’s Law of Torts, 8th ed.

Reports and Documents

 “Liability of the State in Tort”, Consultation Paper issued by the
National Commission to Review the Working of the Constitution
 Law Commission of India: First Report(1956)

WEBLIOGRAPHY
 http://www.legalservicesindia.com
 https://www.lawctopus.com
 https://indiankanoon.org/

23