TORTIOUS LIABILITY OF STATESSynopsis I. Introduction State’s Liability to be Sued II. Meaning of Tort IV. Circumstances in Which State incurs III. Tortuous Liability of the State Tortuous Liability A. Position in England A. Non Sovereign Functions B. Position in U.S.A. B. Sovereign Functions C. Position in India V. Principle of Constitutional Torts State’s Right to Sue VI. Conclusion INTRODUCTION Due to the establishment of welfare State, there has been tremendous increase in the State activities causing serious danger to the person and property of the individuals. The State is not only responsible for maintenance of law and order and collection of taxes, but also carries out various activities which were traditionally considered to be actions of a private individual. In such situations, the issue of liability of the State or Govt. becomes of much more importance. The Constitution of India views the Union and the States as juristic persons – capable of owning and acquiring property, making contracts, carrying on trade and commerce, bringing and defending legal actions, just as private persons, subject to the modifications specified in the Constitution itself. It therefore also makes provisions relating to liability of states in case of committing of any tort, or breach of a contract. MEANING OF TORT According to Salmond, “Tort means a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” According to Section 2(m) of the Limitation Act, 1963, tort means a civil wrong which is not exclusively a breach of a contract or breach of trust. Generally, every person has a capacity to sue, and the liability to be sued in tort. However, there are certain variations of this rule. Although the Union of India and the State Governments can sue and be sued. POSITION IN INDIA Under the Constitution of India two Articles viz. but the circumstances under which that can be done have not been mentioned. 1946 was passed by the Congress with the object to abrogate the immunity of the Federal Govt. However the Federal Tort Claims Act. The doctrine of sovereign immunity was also prevalent in USA. “the Union . Article 294 and Article 300 contain explicit and implicit provisions regarding tortuous liability of State and suit against it. from the liability of the torts committed by its servants. Furthermore. POSITION IN ENGLAND In England. liability of State is based on the principle of vicarious liability. and brings it before the Court of Law in a claim for non liquidated damages for such acts. This Article thus constitutes and transfers the liabilities of Government of India and Government of each governing province in the Union of India and corresponding States. from very early times the King could not be sued in his own courts and the maxim that “the King can do no wrong” was invoked to negative the right of a subject to sue the King. Article 294 (b) of the Constitution of India provides that – “The liability of Union Government or State Government may arise out of any contract or otherwise. Article 300 thus provides that the Union of India and the States are juristic persons for the purpose of suit or proceedings.” The word ‘otherwise’ would include various liabilities including tortuous liability also. ‘Tortuous liability of States’ makes the State liable for the acts and omissions of the servants. Since State is not a natural person who can himself perform any act. But this maxim has now been superseded by the Crown Proceedings Act of 1947 which makes the Crown liable in tort to the same extent as private persons. and can only act through its agencies.TORTUOUS LIABILITY OF THE STATE State may be held liable for the tortuous acts of its servants in certain cases. This liability is known as tortuous liability of State.S. POSITION IN U. Article 300 further provides that.A. voluntary or involuntary. Article 300(1) of the Constitution says – The Government of India may sue or may be sued by the name of Union of India and the Government of a State may sue or may be sued by the name of the State. a distinction is to be made between contractual liability and tortuous liability. founded on the maxim. State’s Right to Sue So far as the right to sue is concerned. defining the position of the governmental tortuous liability in the new changed context. 1915 did the same. ‘King can do no wrong’. In 1956. But till today. wherein it was recommended that suitable law is to be enacted by the Parliament. and provides that the position before Independence shall be continued. Eventually we need to analyse the . while the State may sue by the name of that State e. we need to look into the provisions of the Govt. such law has not been passed. the Union may bring a claim against one or more States. Courts in India have no alternative than to follow the existing case-law which is founded on the old English theory of immunity of State. the Government of India may sue by the name of ‘Union of India’. This Act also recognized the continuance of position prevailing earlier. Even the Govt.of India and the State Government can sue or be sued in the like cases as the Dominion of India and the corresponding Indian States might have sued or been sued if the Constitution had not been enacted. The Governments can sue not only a private person but also another Government. according to Article 300.” Therefore. ‘State of Maharashtra’. For example. NON SOVEREIGN FUNCTIONS Since the Constitution of India does not specify the circumstances in which the State may be sued. of India Act. Though the Parliament and he State Legislature have been empowered to pass laws to change this position. in the absence of any legislation.g. 1935. Contractual liability of the State is provided under Article 299 of the Constitution. Furthermore. CIRCUMSTANCES IN WHICH STATE INCURS TORTUOUS LIABILITY The State may ordinarily be held liable in tort for performance of non-sovereign functions. However. no such law has been enacted. the Law Commission of India had submitted the first report on ‘Liability of the State in Tort’. in certain situations it has been held that state may be liable for torts even for sovereign functions. of India Act. while a State may bring a claim against another State or the Union. With regard to the tortuous liability of the State. the position prevailing before the commencement of the Constitution remains unchanged. such position of the Union and the States is subject to law enacted by the Parliament or the State Legislature. [Article 131] State’s Liability to be Sued In regard to the State’s liability to be sued. Vidyawati After independence. Secretary of State (1861 Bom) In this case. the question of tortuous liability of the Government came to be reconsidered by the Supreme Court in State of Rajasthan v. It was held that the act of the driver was not in the exercise of a sovereign function and therefore held that State was vicariously liable for rash and negligent act of the driver. they suddenly dropped the iron. The Court drew a distinction between acts done in exercise of sovereign functions and acts done in the exercise of non-sovereign functions. Maintenance of dockyard was considered to be a non-sovereign function. . Kasturi Lal Ralia Ram v. they rushed forward against the iron and as a result one of the horses got injured. The Company filed a suit against the Secretary of State-in Council for damages for injury caused to its horse by the negligence of the workmen employed in the Government Dockyard. of India Act. The State claimed that the jeep was maintained in exercise of sovereign powers and not as a part of commercial activity of the State. a servant of P & O Co. of India Act. Once the driver of the jeep was taking it back from the workshop after repairs. The iron fell with great noise which frightened the horses. While walking in the very centre of the road. For this purpose we have to now analyse the case of P & O. The Court held that. was travelling from Garden Reach to Calcutta in a carriage driven by horses and was passing by the Government Kiddepur Dockyard. Steam Navigation Co v. by his rash and negligent driving of the jeep a pedestrian was knocked down and fatally injurer and died.provisions of the Govt. 1858 provided that the Secretary of State may be sued in India as well as in England and that all persons may take such legal action against the Secretary of State as they could have taken against the East India Company. Vidyawati in which a jeep was owned and maintained by the State of Rajasthan for official use of the Collector of the district. His widow sued the State for damages. The State claimed immunity on the ground of act state of under sovereign authority. S. The Court held that the act of public servant committed by him during the course of his employment was in discharge of duties assigned to him not by virtue of delegation of any sovereign powers. on seeing the coach quite near. 65 of the Govt. and therefore the Secretary of State was held liable. State of Rajasthan v. Some workmen of Dockyard were carrying a heavy piece of iron for the purpose of repairing a steamer. 1858. liability could only arise in case of non- sovereign functions. The SC held the famine relief work as a non-sovereign function and the State liable for damages. maintaining a hospital by Govt. it has been held that no action lies against the Government for injury done to an individual in the course of exercise of sovereign functions of the State. It was held that running of hospitals not being exclusive function of the Government. a truck belonging to the PWD was engaged in the famine relief work and a person was killed due to the negligence of the driver of the truck. Commandeering goods during war 2. State of Maharashtra & Ors. In Shyam Sunder v. SOVEREIGN FUNCTIONS In various cases. State of U. would not be an exercise of sovereign power so as to enable to claim immunity from liability for the tortuous acts of its hospital employees. v. a new judicial trend has become visible in the area of right to life and personal liberty under Article 21. In the absence of any law made by the Parliament. the Supreme Court has declared that in cases of constitutional torts the right to compensation is a fundamental right under Article 21. negligence or trespass by Police Officers 5. the State also violates the Fundamental Right of any person. The property was misappropriated by the Head Constable who flew to Pakistan. The question arose whether the State was liable to compensate for the loss so caused. Improper arrest. Following the principle laid down in Steam Navigation Co. Ralia Ram was prosecuted but acquitted of the charge. State of Rajasthan. the Government doctor and the State were held liable because of the negligence of the said doctor in the hospital resulting in death of the patients. It was kept in Government malkhana which was in custody of a Head Constable. In Achhut Rao Hari Bhau Kodwa & Anr. the question of vicarious liability was considered once again by the Supreme Court. Gradually the principle laid down in Kasturi Lal’s case. the Supreme Court ruled that the state was not liable as Police Officers were exercising Sovereign Functions. and the list of sovereign functions is being limited. . Administration of justice 4. A suit for damages was filed by Ralia Ram against the State for the loss caused to him by the negligence of Police Authorities. such as: 1. Payment of money in custody of Government to a person other than the rightful owner by an officer in exercise of statutory duty PRINCIPLE OF CONSTITUTIONAL TORTS After 1980. it is termed as a ‘Constitutional Tort’. case. A certain quantity of gold and silver were seized by police from Ralia Ram on the suspicion that it was stolen property.P In this case. Making or repairing military road 3. Where along with the commission of a tort. He was handcuffed and was kept in the police custody. In Rudal Shah v.P. 1. State of Bihar The Petitioner was kept in jail for 14 years after he had been acquitted by a competent court. State of Orissa the petitioner’s son was arrested by the police under the suspicion of theft. The mother of the deceased sent a letter to the Court alleging custodial death of her son and claimed compensation on the ground of violation of Article 21. thereby guaranteeing the right to compensation as a fundamental right.to the mother of the deceased and said that “right to compensation is a fundamental right under Article 21 of the Constitution”. State of A.50. 5. CONCLUSION It is rightly observed by the Supreme Court in N. . the State was held liable to pay compensation to the Petitioner. In the modern sense.In Nilabati Behra v.. On the next day. The Supreme Court awarded compensation of Rs.000/.000/. the Courts have limited the scope of the doctrine of sovereign immunity and have simultaneously evolved the concept of a constitutional tort. The State was directed to pay Rs. his body was found by the side of the railway track. Nagendra Rao v. State of J&K An MLA was arrested and detained by the police without sufficient reason and thereby he was prevented from attending the session of the Legislative Assembly. In Bhim Singh v. “no civilised system can permit an executive to play with the people of a country and claim to be sovereign. the distinction between sovereign and non-sovereign functions does not exist. To place the State above the law is unjust and unfair to the citizen.as compensation to the Petitioner for the violation of his right to life and personal liberty.” Thus it can be seen that in the absence of any legislation.