TORTIOUS LIABILITY IN RESPECT OF SOVEREIGN AND NON-SOVEREIGN FUNCTIONS OF THE STATE

Author: Prateek Singh, 1st Year, B.A. LL.B (H), School of Law, Jagran Lakecity University, Bhopal.

The article has been written by the author while pursuing the internship programme with us.

INTRODUCTION

Tort Liability is a legal duty to compensate someone for the damages caused. It is the result of the court’s order where the wrongdoer has to pay for the injury caused by his act or omission. This liability, when extended to the State, for the tortious acts committed by the public servants, is known as Tortious Liability. Here, the term State is used synonymously with “Government” prevailing in a country. The extension of the liability of the government for the torts committed by its servants is a complex issue due to the provisions provided by the constitution which are used as defences or immunity against such cases[1]. This liability depends upon the type of function being performed by its servant when the tortious act was committed. The State is immune from the torts committed during the performance sovereign functions but is vicariously liable when torts are committed during the performance of non-sovereign functions[2]. Sovereign functions include defence of the country, maintaining peace or war, welfare activities, foreign activities, maintaining or raising armed forces etc. In this modern era, the distinction between sovereign and non-sovereign function thus does not exist[3]. It depends upon the nature of the power and manner of its exercise. Under the constitution two articles viz Article 294 and Article 300 contains the explicit and implicit provisions for the tortious liability of the state. Article 294 talks about the liability of the state arising out of a contract or otherwise. Article 300 provides that the State can sue or be sued as a juristic personality.[4]

HISTORICAL BACKGROUND

English law

It is an ancient and fundamental principle of the English Constitution that “The King can do no wrong”. This means that the torts committed in the conduct of public affairs cannot make the King liable or answerable personally to anyone[5]. So the Crown cannot be sued civilly or criminally in common law for wrongs committed by its servants in the course of employment[6]. Even the head of quarters or superior officers could not be sued for torts committed by their subordinates unless expressly authorized by them.[7] Thus the above system was proving to be inadequate and these laws needed a change which was brought by the Crown Proceedings Act, 1947. This act provided that the Crown shall be subject to all those liabilities in tort (1) in respect of torts committed by the servant or agent provided that the act or omission of such has brought an action in tort against the servant or agent, (2) in respect of any breach of duties which a person owes to his servant or agent by reason of being their employer, (3) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property[8]. This preserved the immunity of sovereign in person by equated the Crown with its citizens in the matter of tortious liability[9]. The crown was now vicariously liable for the torts committed by its servant in the course of employment.[10]

Indian Law

The maxim “The king can do no wrong” was never accepted or been applied in India even during the rule of the East India Company. British India was administered by the East India Company till the time when the Government of India Act,1858 was passed which transferred sovereignty to the Crown directly. It was later replaced by the Government of India Act,1915 and 1935. Section 65 of this act, which remained in the statute of the subsequent Government Acts, became the parent source of the law relating to the tortious liability of the government[11]. It stated as “All persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable against the Secretary of the State of India as they could have done against the said Company”[12]. This provision was continued in the succeeding government acts and in the present constitution of India as Article 300. This authority of section 65 of the 1858 Act was quoted in the construction of the decision of the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India[13].[14]

SCOPE OF SOVEREIGN FUNCTIONS

Act of State- The scope of the sovereign functions is vast and complex due to the justification and provisions provided under the Constitution of India which are used to preserve the immunity of the State[15]. The Act of state is one such English law which was followed in India in the pre-independence era and has been followed post independence also after the Constitution came into force as existing law. These are against a sovereign or his subjects, being based on policy considerations. The taking over of Indian states for their merger with the Dominion of India and the annexation of Goa, Daman and Diu by conquest in 1961 are examples of Acts of State. The legality of this law may continue for a long period of time over the coming years too.

Judicial Acts- Judges of Supreme Court, Justice of Peace, Collector and other judges of inferior courts and magistrates, without any distinction, enjoy the immunity for any act done by them in the discharge of their judicial duty, whether or not, within the limits of their jurisdiction, provided that they acted in good faith[16]. This immunity is provided under The Judicial Officers protection Act, 1850.

Executive Acts- The executive government and the executive officers in India, generally do not enjoy any protection or immunity except that conferred by legislative enactments[17]. The State and officers are however, not liable when the wrongful acts fall under the purview of Acts of states[18]. The state is also vicariously liable for the torts committed by its servants except during the performance of sovereign activities.

Statutory Authority- It is also among the ones which cannot be sued for its actions that are directed for any purpose. It is based on the principle that no action can be maintained against that act which the legislature has authorized[19].The statutory authority extends not merely to the acts authorized by the statute but to all inevitable accidents[20]. But this is limited to the situation where the powers conferred by the legislature are used with due caution and reasonable exercise. An action can be maintained if negligence is shown in such implications.[21]

LANDMARK CASES

The question of the liability of the state post-independence arose firstly in the Supreme court in the case of State of Rajasthan v. Vidyawati[22] where the claims of damages was made by the defendants of a person who died in an accident caused by the negligence of a driver of a vehicle maintained by the Government for official use of the Collector of Udaipur while it was being brought back from the workshop after repairs[23]. The State was held liable for the tortious act of its servant breaking the old feudalistic notions that the king can do no wrong. This extent of liability again came up for consideration in the case of Kasturilal Ralia Ram Jain v. State of U.P.[24][25]

In this case, a partner of Kasturi Lal Ralia Ram, a firm of jewelers , went to Meerut for selling of gold and silver , where he was arrested over the suspicion of possession of stolen property[26]. The gold and silver recovered from the partner was kept in a Malkhana. The silver was returned the next day when the partner was released but the gold was misappropriated by the Head Constable who fled to Pakistan. In the court, the state was found not liable as the police failed to perform functions of taking proper care of the property. It was considered to be a special characteristic of sovereign power delegated to a public servant and the defense of sovereign immunity was to be applied in this case.

CONCLUSION

Our constitution provides the provisions which validates legislative supremacy and also an upper hand in executive functions. One cannot simply question the due process established by the legislature or the executive because it comes under the purview of exercising their authoritative powers. Thus sovereign immunity prevails without distinction. But to protect the interests of the general public, fundamental rights are enshrined in our Constitution with the remedies for the violations of these rights to uphold a cooperative, socialistic and idealistic society and to maintain a balance of powers between the State and its citizens.


REFERENCES:

[1] Subhyanka Rao, Vicarious Liability Of the State ,Lawoctopus, (Sept 5 , 2014) https://www.lawctopus.com/academike/vicarious-liability-state/

[2] https://edurev.in/studytube/Vicarious-liability-of-State-Law-of-Tort–Notes/813c997a-779e-49a6-b9eb-7f89b340f539_t

[3]Prarthna Vaidya, Vicarious liability of the state in Sovereign functions, Legal Services India http://www.legalservicesindia.com/article/580/Vicarious-Liability-of-State-in-Sovereign-Functions.

[4]Justice U.C. Shrivastava , Tortious liability of State under the Constitution, (March 1997 )http://ijtr.nic.in/articles/art68.pdf

[5]Aravinth ravi, Law of torts , SCRIBD ,https://www.scribd.com/presentation/402733058/Lawof-Torts

[6]Marius damian, Common Cause v. UOI , SCRIBD https://www.scribd.com/document/288074756/Common-Cause-v-UO

[7] Home Office v. Dorset Yacht co. (1970) AC 1004

[8]Crown Proceeding Act 1947, Legislation.gov.uk, https://www.legislation.gov.uk/ukpga/Geo6/10-11/44/section/2?timeline=false1

[9] Supra p.3

[10] Supra p.9

[11] Liability of State in Tort, IndianKanoon ,https://indiankanoon.org/doc/82752666/

[12] Supra p.4

[13] Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, (1868-1869) 5 Bom HCR App 1 P. 1

[14]Madhu Gadre , Case study- Peninsular and Oriental Steam Navigation Company, SCRIBD https://www.scribd.com/document/273819561/Case-Study-Peninsular-and-Oriental-Steam-Navigation-Company

[15] Dr. Subhash Kashi Nath Mahajan v. The State of Maharashtra AIR 2018 SC 1498, IndianKanoon , https://indiankanoon.org/doc/108728085/

[16] Law Commission of India, The Judicial Officers Protection Act 1850, https://indiankanoon.org/doc/113518087/

[17] Archana. K, General Defences(Justifications), AuthorStream, http://www.authorstream.com/Presentation/aSGuest117596-1228529-defences/

[18] Zachary Douglas, State immunity for the Act of State Officials, Oxford Academic ( 29 May 2012) , https://academic.oup.com/bybil/article/82/1/281/276348

[19] Allen v. Gulf Oil Refinery Ltd., (1981) 1 All ER 353,p,365

[20] Manchester Corp. v. Farnworth, (1930) AC 171

[21] Aditi Agrawal, General Defenses in Tort, Academike, (Sept 2, 2014) https://www.lawctopus.com/academike/general-defenses-in-torts/

[22] State of Rajasthan v. Vidyawati, (1963) 1 SCJ 307

[23] Supra p.1

[24] Kasturilal Ralia Ram Jain v. State of U.P, (1965) 2 Cri LJ 144

[25] Union Of India (UOI) vs The New Vijay Weaving Works (1974) 15 GLR 322 https://indiankanoon.org/doc/98862/ [26] Aditya Sharma, 03-RnD Chapter 3_p-33-72, SCRIBD, https://www.scribd.com/document/433360310/03-RnD-Chapter-3-p-33-72


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