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The Indian Penal Code, 1860
Article 21 in The Constitution Of India 1949
Kasturi & Ors vs State Of Haryana on 12 November, 2002
Article 300 in The Constitution Of India 1949
Section 354 in The Indian Penal Code, 1860

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Central India Law Quarterly
State Liability In Tort : Need For Legislation
STATE LIABILITY IN TORT : NEED FOR LEGISLATION Dr. Smt. Kamla Jain* Liability in tort - Article 300(1) provides that the Government of lndia may be sued in relation to its affairs in the like cases as the Dominion of India, subject to any law which may be made by Act o Parliament. The Parliament has f not enacted any law and therefore the question is determined as per the law that existed before the Constitution came into force. Thus, so long as the Parliament does not enact a new law on the point, the legal position in this respect is the same as existed before the commencement of the Constitution. Before the Constitution, the East lndia Company, and after the Government of lndia Act, 1856, which transferred the Government of lndia to Her Majesty with its rights and liabilities, the Secretary of State for lndia were liable for the tortious acts of their servants committed in the course of their employment. Section 65 of the Government of lndia Act, 1858, provided that the Secretary of State for lndia can be sued as it could be done against the East lndia Company. Section 65 of the Government of lndia Act, 1858, was re-enacted as section 32 of the Governmenf ~f lndia Act, 1935. In the present Constitution the corresponding provision is Art. 300. The first leading case on the point is the P. and 0. Steam Navigation Co. v. Secretary of State for India.2 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 M.A., LL.M., Ph.D., Professor & H 0.0, Govt. Hamidie College, Bhopal (M.P.) Recepient of Ambedkar Award on her Book "Parliament v. Exec." Presented N~ne Research Papers at International Law Research Seminar held at Vigyan Bhawan, New Delhi on 21-24 March 1993. Life Member. Cerrtnl lnd~a Law Institute. Jabalpur 1. Kasturi Lal v. State of Uttar Pradesh, AIR 1965 SC 1039. 2. P. and 0. Steam Navigation Co. v. Secretary of State for Ind~a. Bom. H.C R. Appl. 1. 5 - -- -- - - - - Vol. X:l] STATE LIABILITY IN TORT 101 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 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 tiability could only arise in case of "non- sovereign functions". The East lndia Company had a two-fold character - (a) as a sovereign power and (b) as a trading compgny. 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. The above principle has been apprqved and applied by the Supreme Court of lndia in the following cases: In State of Rajasthan v. ~idyawatia driver of a jeep owned and the maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly and negligently while bringing it back from the workshop after repairs and knocked down a pedestrian and fatally injured 3 State of Rajasthan u. V~dyawab. AIR 1962 SC 933. \ him. As a resuii of the injuries the pedestrian died. His widow sued the Stat(> ,f Rajasthan for damages. The Supreme Court of lndia held that the State was liable and awarded damages. The accident took place while the driver was bringing it back from the workshop to the Collector's residence. It cannot be said that he was employed on a task which was based on delegation of sovereign or governmental powers of the State. His act was not an act in the exercise of sovereign function. The Court said that the employment of driver of the jeep car for the use of a civil servant was an activity which was not connected in any manner with the Sovereign power of the State at all. The Court approved the distinction made in Steam Navigation Company's case between the sovereign function, and the non-sovereign function of the State. However, Sinha, C.J., made an important observation in Vidyawati's case. His Lordship said that the common law immunity rule based on the principles that 'the King can do no wrong' has no application and validity in this country. "There should be no difficulty in holding that the State be as much liable for tort and in respect of a tortious act committed by its servant and functioning as such, as any other employer ........ In lndia ever since the time of East lndia Company, the sovereign has been held liable to be sued in tort or the contract, and the Common law immunity never operated in India. Now that we have'by our Constitution established a republican form of Government and one of the objects is to establish a Socialist State ........ there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious acts committed by its servants.. ......... 94 9 This observation indicates that the Supreme Court was of the view that immunity from liability of the State for tortious acts committed by its servants when exercising sovereign powers delegated to it cannot be sustained. But the Court expressed its view that in the absence of a law - made by Parliament under Article 300 (1) of the Constitution, the law in force today is the law th :t was in force ever since the time of East lndia Company. In Kasturi Lal v. State of U.P.= , a person was taken into custody on 4. lbid Vol. X:l] STATE LIABILITY IN TORT 103 suspicion of being in possession of stolen property and taken to pollce station. His property including certain quantity of gold and silver was taken out from him and kept in the Malkhana till the disposal of the case. The gold and silver was misappropriated by a police constable who fled to Pakistan. The appellant sued the State of Uttar Pradesh for return of the gold and silver, and in the alternative claimed damages for loss caused by negligence of the Meerut police. The State contended that no liability would accrue for acts committed by a public servant where such acts were related to the exercise of the sovereign power of the State. The Supreme Court held that the State was not liable. The Court approved the distinction made in the Steam Navigation case between sovereign and non-sovereign functions of the State. Gajendragedkar, C.J., said: 'If a tortious act committed by a public servant gives rise to a claim for damages, the question to ask is: was the tortious act committed by a public servant in discharge of statutory functions which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant. If the answer is in the affirmative the action for damages will not lie. On the other hand, if the tortious act has been committed by a public servant in the discharge of duties assigned to him not by virtues of the delegation of any sovereign powers, an action for damages would lie." The Court held that the tortious act of the police officers was committed by them in discharge of sovereign -powers and the State was therefore not liable for the damages caused to the appellant. The Court said that the power to arrest a person, to search him, and to seize property found with him as powers conferred on the specified officers by statute and therefore they are powers which can properly be characterised as sovereign powers. The Court however made a strong plea for enactment of a legislation to regulate and control the claim of the State for immunity on the lines of the Crown Proceedings Act 'of England. In Peoples Union for Democratic Rights v. Poke Commissioner, Delhi Police Headquarters6, one labourer was taken to the police station for doing some work. When he demanded wages he was severely beaten and untimely he succumbed to the injuries. It was held that the state was liabte to pay Rs. 750001-as compensation to the famity of the deceased labourer. Similarly, in Saheli v. Commr. of Police,' the state was hekf to 6. (1989) 4 SCC 730. 7. (1990)AIR SC 513. 104 CENTRAL INDIA LAW QUARTERLY [I 997 be liable for the tortious acts of its employees when a 9 year boy had died due to the beating by the police officer acting in excess of power vested in hlm. The court directed the Government to pay Rs. 750001- as compensation to the mother of the child. Although the principle which determines the extent of the vicarious liability of the State for the torts committed by its servants is thus well settled, it is by no means easy to apply the principle to particular cases. In modern times the distinction between sovereign and non-sovereign functions has almost been obliterated. How difficult it is to draw a line of distinction between these two functions of the State can .well he illustrated by some of the cases decided by various High Courts. In Satyawati v. Union of India,* an Air Force vehicle was carrying hockey team of Indian Air Force Station to play a match against a team of Indian Air Force. 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. In Union of lndia v. Sugrabaig , one Mr. Abdul Majid was knocked down by a military truck which was engaged in carrying a machine to the School of Artillery. The machine was sent for repairs to military workshop and after repairs it was being transported to the School of Artillery. It was a machine for locating enemy guns which was'meant for giving training to military officers. The Government pleader argued that training of army personnel was a sovereign function which in turn required maintenance of machines, and maintenance of machines required that they should be kept in proper repair, and that work of repairing required its transportation from workshop to military school and therefore transporting was a sovereign function. The Court rejected this argument that. every act which is necessary for the discharge of a sovereign 8. AIR '957 Delhi 98. 9. AIR 1969 Born. 13. Vol. X:l] STATE LIABILITY IN TORT 105 function involves an exercise of sovereign power. Many o these acts do f not require to be done by the State through its servants, for example supply of food to army which may be transported in trucks belonging to private persons. The Court said that though the transportation of the machine from the workshop to the military school was necessary for the training of army personnel but it was not necessary to transport it through a military truck driven by defence personnel. The machine could have been carried through a private carrier without any material detriment for the discharge of, by the state of its sovereign function of maintaining army personnel. The court accepted that in certain cases transporting of machine by a military truck can be regarded as a sovereign function e.g., carrying machine for the immediate use of army engaged in active military duty. In Rooplal v. Union of India,'O the military jawans in the employment of the Union of India lifted the diift wood belonging to the plaintiff and carried it through military vehicles for purposes of camp fire and the fuel was used by them for their requirements. The court held that the act was dome by jawans in the course of the employment and the Government was liable for damages. Even assuming the jawans found the wood lying on the river side and took them away bona f i e thinking that it belonged to the Government, the State was liable to compensate the plaintiff when ultimatety it was found to belong to the plaintiff. Reasoning was that illegal act in carrying away the fire wood could be committed by the military jawans by carrying it through any other truck which any private person could do. In Baxi Amrik Singh v. Union of India,'' an army driver while driving an army truck caused accident to the Plaintiff. At the time of accident the driver was deputed on duty for checking military personnel on duty for the whole day. The Court held that the accident was caused in discharge of the sovereign fuction of the State because only military personnel could be deputed to check the military personnel on duty. It was for this purpose that the army vehicle was placed at the di&l of the person deputed for duty and he himself drove the vehicle to go from place to 10. AIR 1972J& K 2 2 . 11. 1972Punj LR1. 106 CENTRAL INDIA LAW QUARTERLY [I 997 place. This function can-not be entrusted to private individuals. In State of Orissa v. Padmalochan12the plaintiff filed a suit for damages against the State of Orissa for injuries caused to him by the Military . Police. The fact was that in apprehension of danger of attack on the office of the S.D.O. and the properties by an unlawful mob which resorted to violence, there was police cordoning the D.M.P. under the control of supervisory officers and magistratj? without any orders from the magistrate or higher authorities the police personnel assaulted members of the mob as a result of which the plaintiff received injuries. The court held that the injuries caused to the plaintiff by the police personnel with a view to disperse the unlawful crowd were in exercise of the delegated sovereign function, the fact that the police committed excess in discharge of their function without authority could not take away the illegal act from the purview of delegated sovereign function. The State was held to be not liable for the police. In Thangarajan v. Union of India,13 an army driver was deputed for collecti~gCO, gas from the factory and to deliver it to ship, I.N.S. Jamuna. As a result of rash driving he knocked down the appellant, a minor boy aged about 10 years. It was held that the accident was caused to the plaintiff while the driver was driving the lorry for the purpose of supply of C , to the ship, I.N.S. Jamuna, which was in exercise of O sovereign function of the State for maintaining military purposes. However, in view of the peculiar circumstances of the case, the Court strongly recommended to the Central Government to make an ex-gratia payment of Rs. 10,000 the appellant. The Court said, "It is cruel to tell to the injured boy who has suffered grievous injuries and was in hospital for over 6 months incurring considerable expenditure and has been permanently incapacitated that he is not entitled to any relief as he had the privilege of being knocked down by a lorry which was driven in exercise of sovereign functions of the state". The rule of liability of the State for torts of its servants as laid down in the Steam Navigation's case is very out-moded. In the modern age when the activities of the State have vastly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State. 12. AIR 1975 ORISSA 41. 13. AIR 1975 Mad. 32. / Vol. X:l] STATE LIABILITY IN TORT The increased activities of the State have made a deep impact on all facts of an individual's life, and therefore, the liability of the State should accordingly be made co-extensive with its modern role of a welfare State and not be confined to the era of laissez faire (individualism), which the P. and 0. Steam Navigation's case signifies.14 In Bachan Singh v. State of Punjab,15 the Suprime Court by 4:l majoriiy (Bhagwati, J. dissenting) has overruled Rajendraa Prasad's decision and has held that the provision of death penalty under Sec. 302, I.P.C. as an alternative punishment for murder is not violative of Article 21. Art. 21 of the Constitution recognizes the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. In view of the constitutional provision by no stretch of imagination it can be said that death penalty under section 302, I.P.C. either per se, or because of its execution by hanging constitutes as unreasonable, cruel or unusual punishment. The death penalty for the offence of the murder does not violate the basic feature of the Constitution. The International Covenant of Civil and Political Rights to which India has become party in 1979 do not abolish imposition of death penalty in all circumstances. All that it requires is, that (1) death penalty should not be arbitrarily inflicted, (2) it should be imposed only for most serious crimes. Thus the requirement of International Covenant is the same as the guarantees or prohibitions contained in Arts. 20 and 21 of our Constitution. The Indian Penal Code prescribes death penalty as an alternative punishment only for heinous crimes, Indian Penal Laws are thus entirely in accord with international commitment. In Deena v. Union of Indiat6, the constitutional validity of Section 354 (5) Cr. P.C. 1973 was challenged on the ground that hanging by rope as prescribed by this section was barbarous, inhuman and degrading and therefore violative of Art. 21. It was urged that State must provide a human and dignified method for executing death sentence. The Court unanimously held that the method prescribed by Sec. 354 (5) for executing the death sentence by hanging by rope does not violate Art. 21. The court held that section 354 (5) of the Cr. P.C., which prescribed hanging as mode of execution lays down fair, just and 14. M.P. Jain - IndianConstitutional Law, p.558 (1962 ed) 15. AIR 1980SC898. 16. (1983) 4 SCC 645. 108 CENTRAL INDIA LAW QUARTERLY (1997 reasonable procedure within the meaning of Art. 21 and hence is constitutional. Relying on the report of U.K. Royal Commission 1949, The opinion of the Director General of Health Services of India, the 35th report of the Law Commission , opinion of Prison Advisers and forensic medicine, the Court held that hanging by rope is the best and least painful method of carrying out the death sentence than any other methods. The Judges declared that neither electrocution, nor lethal gas, or shooting, nor even the lethal injection has "any distinct or advantage" over the system of hanging by rope. In Attorney General of lndia v. Lachma Devil7, it has been held that the execution of death sentence by public hanging is barbaric and violative of Art. 21 of the Constitution. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime does not have to be visited with a barbaric penalty such as public hanging. What is significant is that the doctrine of sovereign immunity has not become obsolete, but it is very much available as a defence though not in the cases of public law remedy based on strict liability for contravention of fundamental rights, but in cases of other tortious acts committed by public servants while exercising the statutory functions. Another significant factor which need to be mentioned here is that the dictum of the Supreme Cowl in Kasturilal Jain's case has not been over ruled or set aside and has only been distinguished on facts in Nilabati Behera's case; by holding that the defence of 'sovereign immunity' is available. The Supreme Court reiterated its earlier decision In Kasturilal Jain's case though not in that form, but in a modified form - the modification being that in the case of violation of the fundamental rights of the citizen by the tortious acts of the public servants committed while discharging the statutory functions delegated to them under a statute, the State is vicariously liable. In view of the judgement of the Supreme Court in Smt. Nilabti Behara's case the situation has again become resuscitated, in as much as the defence of 'sovereign immunity' is now available, in a case for damage save the tortious acts of the public servants committed while discharging their statutory functions which affected the life and liberty of the 17. AIR 1986 SC 467. Vol. X:l] STATE LIABILITY IN TORT individual, but not the property. Of course the individual liability of the public servant for his tortious acts is always there. The victim and his legal heirs can always therefore proceed against the erring public servant for his tortious acts in.a private action. But such remedy against the public servant well-nigh is as good as no remedy at all. It is neither practical nor efficacious remedy and is nothing but chasing a mirage. That apart the other side of the coin is also to be seen. The public servant is not acting in his individual capacity, but as an agent or a representative of the State. ' At times in his anxiety while discharging the official functions might exceed his powers and limits. Absolutely no personal motive can be attributed in such cases. Therefore, it is not reasonable to mulcl the official, with damage, who committed the act of negligence while discharging his official functions in good faith. Unless motive is attributed to him, he cannot be made liable personally for his official acts. But all the same the erring official is not immune from any action, and his responsibility shall be fixed, and proceeded against , either departmentally or by initiating appropriate action including prosecution. Indeed such an action will deter the public servants and desist them from committing arbitrary and excessive acts under the garb of official duties. It is needless to emphasise that ours is a democracy. The preamble to the Constitution reads that India is a Sovereign Socialist Secular Democratic Republic. In a democracy "Rule of Law" is the basic requirement. The purpose of the "Rule of Law" is to protect the individual against arbitrary exercise of power. The exercise of power by the administration shall therefore be in consonance with the rule and the person exercising the power is always accountable to law. If a property is seized by the police or other authority while exerci'sing the powers conferred under a statute (delegated statutory power) from an individual, so soon after the purpose of such seizure ceases the public officer or the authority holds that property till it is restored, to the original owner or the person entitled to the possession thereof, in trust for the benefit of such owner or the person . If such property is lost or otherwise could not be delivered and the owner or the person were to he told tomorrow that he has no remedy - whither democracy and "Rule of Law"? It is no doubt that it is an attribute of sovereignty that a State cannot be sued in its own courts without its consent. The immunity of the Crown was based on the old feudalistic notions of justice namely the King was incapable of doing a wrong, but it was realised even in the United Kingdom, that principle 110 CENTRAL INDIA LAW QUARTERLY [I 997 had become outmoded and that is the reason why the British Parliament passed the Crown Proceeding Act, 1947.As per the provisions of the said Act, the Crown is subjected to all those liabilities in tort to-which a private person was subjected to the Crown is also liable for statutory negtigence in the same way as an individual. Therefore, in England the Government's privileged position as regards the law of torts, has disappeared. The irony is, the law of torts in our country which is based on the common low principles of England is nothing but the legacy left behind by the British Government and even though the British Government had brought in a suitable legislation to change the feudalistic view prevalent in the United Kingdom, that King can do no wrong, by passing the Crown Proceedings Act, still we did not bring in a similar suitable legislation to fulfil the needs and aspirations of the people in tune with the democratic principles. It is apt here to quote the observation of the Supreme Court in Kasturilal Jain's case thus: "It is time that the legislature in India seriously consider whether they should not pass legislative enactments to regulate and control their claim from immunity in cases like this on the same lines as has been done in England by the Crown Proceedings Act, 1947" Despite the judicial activism striking a realistic note, which reduced the magnitude of the hardship by modifying the feudalistic principles that King can do no wrong and King can sue but cannot be sued still the much needed respite, suitable to the needs and aspirations of the people in a Welfare State, has not been given yet. It is high time therefore for the Parliament to ponder over the issue to bring in a suitable legislation after identifying the areas, and limiting the applicability of the doctrine to those fields alone as in the case of the Crown Proceedings Act, 1947 passed by the British Parliament.