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
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.
- -- -- - - - -
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
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
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
In Kasturi Lal v. State of U.P.= , a person was taken into custody on
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
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
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
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
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.