This Article has been written by J.AKSHAYA from The Tamil Nadu Dr. Ambedkar Law University, School of Excellence in Law, Chennai.

INTRODUCTION:

Tort is a civil wrong which results in unliquidated damages. The constitutional torts are mainly based on the concept of vicarious liability of the state for which the maxim stands as “quifacit per alium facit per se” that is 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 does not commit the tort.

Liability of the State for the tortious acts of its servant is known as tortious liability of State. Constitutional Tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants. It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights are violated.

Since the state is a legal entity and not a living entity, it has to act through human agency, through its servants. So in this article we would discuss about the evolution of the law relating to tortious liability of the state.

HISTORY BEHIND TORTIOUS LIABILITY:

In England, the Government was never considered as an ‘honest man.’ It is Fundamental to the rule of law that the Crown, like other public authorities, should bear its fair share of legal liability and be answerable for wrongs done to its subjects. The immense expansion of governmental activity from the latter part of the nineteenth century onwards made it intolerable for the Government, in the name of the Crown, to enjoy exemption from the ordinary law.

English law has always clung to the theory that the King is subject to law and, accordingly, can commit breach thereof. As far as 700 years ago, Bracton had observed: “The King is not under man, but under God and under the law, because it is the law that makes the King” Though theoretically there was no difficulty in holding the King liable for any illegal act, there was practical problems.

Rights depend upon remedies and there was no human agency to enforce law against the King. All the courts in the country were his courts and he could not be sued in his own courts without his consent. He could be plaintiff but never be made defendant. No writ could be issued nor could any order be enforced against him.

As ‘the King can do no wrong’, whenever the administration was badly conducted, it was not the King who was at fault but his Ministers, who must have given him faulty advice. But after the Crown Proceedings Act, 1947, the Crown can now be placed in the position of an ordinary litigant.

In India, history has traced different path. The maxim ‘the King can do no wrong’ has never been accepted in India. The Union and the States are legal persons and they can be held liable for breach of contract and in tort. They can file suits and suits can be filed against them.

DOCTRINE OF VICARIOUS LIABILITY:

When we discuss the Tortious liability of the State, it is really the liability of the State for the tortious acts of its servants that have to be considered. In other words, it refers to when the State can be held vicariously liable for the wrongs committed by its servants. Vicarious liability refers to a situation where one person is held liable for act or omission of other person.

Winfield explains the doctrine of vicarious liability thus: ”The expression ‘vicarious liability’ signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. it is not necessary that A shall have participated in any way in the commission of the tort nor that a duty owed in law by A to C shall have been broken.

What is required is that A should stand in a particular relationship to B and that B’s tort should he referable in a certain manner to that relationship”. Thus, the master may he held liable for the torts committed by his servant in the course of employment.

The doctrine of vicarious liability is based on three principles

1. Respondeat superior (Let the principal be liable); and
2. Qui facit per alium facit per se (He who does an act through another does it himself)
3. Socialisation of Compensation.

INDIAN LAW:

As far as India is concerned they did not accept the maxim “Kings can do no wrong” Absolute immunity of the Government was not recognised in the Indian legal system even prior to the commencement of the Constitution and in a number of cases, the Government was held liable for tortious acts of its servants.

Constitutional provisions:

Under Article 294(b) of the Constitution, the liability of the Union Government or a State Government may arise ‘out of any contract or otherwise’. The word ‘otherwise’ suggests that the said liability may arise in respect of tortious acts also. Under Article 300(1), the extent of such liability is fixed. It provides that the liability of the Union of India or a State Government will be the same as that of the Dominion of India and the Provinces before the commencement of the Constitution. It is, therefore, necessary to discuss the liability of the Dominion and the Provinces before the commencement of the Constitution of India.

SOVERIGN FUNCTIONS OF THE STATE:

Sovereign functions are those actions of the state for which it is not answerable in any court of law. For instance, acts such as the defence of the country, raising and maintaining armed forces, making peace or war, foreign affairs and acquiring and retaining territory are functions which are indicative of external sovereignty and are political in nature. Therefore they are not amenable to the 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 function was considered at same length in N.Nagendra Rao v state of AP. All the earlier Indian decisions on the subjects were referred to. The court enunciated the following legal principles, in its judgement:

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 the manner of its exercise.

Pre-Constitution Judicial Decisions Relating to Tortious Liability of State:

1. Peninsular & Oriental Steam Navigation Company v Secretary:

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. In P. & O. Steam Navigation Co. v. Secretary of State, 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 for the purposes of vicarious liability of state.

As the facts of the case go, a servant of the plaintiff’s 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.

This arose out of section 65, Government of India Act, 1858, which equated the liability of the Secretary of State for India with that of the East India Company. Distinguishing between sovereign and non-sovereign functions it was held that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property as a prize.

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 a 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 the exercise of sovereign power and was thus not actionable.

Secretary of State v. Hari Bhanji

In this case, the Madras High Court held that State immunity was confined to acts of the 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 the 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 

However, in Secretary of Secretary of State v. Cockraft, 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 carriage accident that injured the plaintiff.

POST CONSTITUTIONAL JUDICIAL DECISIONS RELATED TO TORTIOUS LIABILITY OF STATE:

• In State of Rajasthan v. Vidhyawati, a jeep was owned and maintained by the State of Rajasthan for the official use of the Collector of a district. Once the driver of the jeep was bringing it back from the workshop after repairs by his rash and negligent driving of the jeep a pedestrian was knocked down. He died and his widow sued the driver and the State for damages. A Constitution Bench of the Supreme Court held the State vicariously liable for the rash and negligent act of the driver. The court after referring to the Steam Navigation Co. did not go into the wider quest ion as to whether the act was a sovereign act or not. But it held that the rule of immunity based on the English law had no validity in India. After the establishment of a Republican form of Government under the Constitution there was no justification in principle or in public interest, that the State should not be held liable vicariously for the tortious acts of its servants. It is submitted that the law has been rightly laid down by the Supreme Court in Vidhyawati. Unfortunately, however, within a very short time, a clear departure was made in Kasturi La1 and the efficacy of the law laid down in Vidhyawati was considerably watered down by the Supreme Court.
• In Kasturi Lal v. State of U.P.: a certain quantity of gold and silver was attached by police authorities from one R on suspicion that it was stolen property. It was kept in Government, malkhana which was in the custody of a Head Constable. The Head Constable misappropriated the property and fled to Pakistan. R was prosecuted but acquitted by the court. A suit for damages was filed by R against the State for the loss caused to him by the negligence of police authorities of the State. The suit was resisted by the State. Following the ratio laid down in Steam Navigation Co., the Supreme Court held that the State was not liable as police authorities were exercising ‘sovereign functions’
• Devaki Nandhan Prasad v. State of Bihar :

In this landmark ruling, the Apex court laid the foundation of new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.

• In Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented before the Apex court was whether the court can award monetary damages under its jurisdiction as given in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32 may be granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional tort and compensation.

The judgement formulated two landmark rules by holding that:

1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.

CONCLUSION:

Recent judicial trend is, undoubtedly, in favour of holding the State liable in respect of tortious acts committed by its servants. In cases of police brutalities, wrongful arrest and detention, keeping the under-trial prisoners in jail for long periods, committing assault or beating up prisoners, etc. the courts have awarded compensation to the victims or to the heirs and legal representatives of the deceased.

As a matter of fact, the courts have severely criticized the in human attitude adopted by the State officials. The Law Commission also stated: “The old distinction between sovereign and non- sovereign functions should no longer be invoked to determine liability of the State.”

REFERENCE:

1. J.N. Pandey , The Constitution Of India, Central Law Agency Hyderabad, 59^th edn.; 2022.
2. C.K. Takwani, Lectures on Administrative Law , Eastern book house, ^7th edn,2021
3. Ravi Shanker Pandey, Constitutional Tort: The law that deals with Vicarious Liability of the State, June 4 , 2019.
4. Vicarious Liability of state in India ( Last visited on December 4 2023)
5. Nehal Misra, Liability of administration in tort , August 2020
6. Peninsular and Oriental Steam Navigation Co. v. Secretary of State. (1861) 5 Born HCR App 1.
7. AIR 1962 SC 933 (940).
8. Kasturi Lal v. State of UP., AIR 1965 Sc 1039: (1965) 1 SCR 375
9.  I.L.R. 1 Cal. 11
10. ILR (1882)