Tortious Liability of State/Government/Administration - Administrative Law

Introduction

Tort is civil wrong. We all know that. We also know the notion of vicarious liability. It mean principal is responsible for agent's fault. It also mean that superior is responsible for action of sub ordinate. This is based on latin maxim "Qui facit per alium facet per se' and 'respondeat superior'.

What we are going to discuss here is liability of government when their servants are involved in Tort. When officer during his duty cause some harm to you, can you get a compensation from government ? Or do you need to file for compensation against Officer ? Up to what extent government is responsible ? Is Government responsible everywhere (Position in England) ? We are going to answer some of these questions.

The objective of this post is

1. Meaning of Sovereign and Non sovereign function
2. Position of Tortious liability in England
3. Position in India
4. Court judgements
5. Conclusion

Sovereign and Non sovereign function

Sovereign functions are those for which state is not answerable in Court of Law. For example maintaining army, defense, taxation etc. These are the functions which only State can do.

Any other function apart from Sovereign function can be called as Non-Sovereign function. For example State running a business.!

Understanding of Sovereign and Non-Sovereign function is crucial for determining the liability of State.

Nowhere they are defined. This gives rise to wide discretion to judge while determining whether particular function is Sovereign or Not. If he is inclined towards individual justice, then he may declare certain function as sovereign function, if he is inclined towards state control, he may declare such function as Non sovereign function.

In Secretary of State Vs Nagaro Limbaji (AIR 1943 Nag 287), the plaintiff got finger injury due to explosion in nearby area where Military was practicing. It was held that Military practice was sovereign function and there is no liability of state.

In P & O Steam Navigation Company Vs Secretary of State [1861 Bombay HC], court tries to differentiate between sovereign and non sovereign function. Court said.

If the function is one that can be carried on by a private individual without delegation of sovereign powers it is a non sovereign function and liability can be imposed on the Government. On the other hand if sovereign power or delegation of such power is essential for the carrying out of the act in question, the function is "sovereign" and no liability can be imposed. This test formed the basis for determining the liability of the Union of India or the States for the tortious acts of its employees in later years.

Position in England

"Crown could do no wrong" was the position in England. King could never be held liable earlier.

In Tobin Vs R (1843), it was held that "If crown were held liable, the principle of 'king can do no wrong' would be meaningless.

However the individual agents of crown like officers were held liable when the act beyond their legal authority.

With increased government functions there was lot of state involvement. Complete immunity to crown was looking incompatible with demands of the justice. The Crown Proceedings Act, 1947 was passed in response to demands of justice. Under this act, Crown as well as his agents could be held liable jointly or severely. 

In short, currently Crown can be held liable for wrongs.

Position in India

Long back concept of immunity to top officials was now applicable in India.

In John Stuart's case (1775), it was held that Governor General in Council had no immunity from Court's jurisdiction involving the dismissal of government servants.

In Moodaly Vs The East India Company (1775), Privy council held that common law doctrine of sovereign immunity was not applicable in India.

After Constitution, Article 294 and 300 provides for express and implied provision regarding tortuous liability of State and suits against it. 

Article 294(b) clearly indicates the liabilities of State. It provides that liability of Union government or State government may arise out of any contract or otherwise. The word otherwise includes tortious liabilities also.

Article 300 provides that State can sue or be sued. It considers state as juristic person. 

In State of India Vs Vidhyawati (AIR 1962 SC 933), Court held State vicariously liable for offence of it's servant. A jeep driven by government employee knocked down a person. Supreme Court refused immunity to State and held them liable. This in way expanded the article 300 and brought tortious liabilities into it.

However the decision in above case was kind of reversed in Kasturi Lal Vs State of UP (AIR 1965, SC 1039). In this case plaintiff was going to some place. He was arrested and his gold and silver were seized. Silver is returned to person but Gold was taken by Constable who ran away to Pakistan. Court refused compensation to Mr Kasturi Lal saying state was doing it's duty.  Court also brought in distinction of Sovereign/Non-Sovereign functions. Court further held that if function is sovereign, State cannot be held liable. Sad.

Court Judgements

 On various occasions Courts have denied immunity to States and held them liable. Many are related when Officers/Police have violated Article 21 (Freedom of life and liberty). Let's see some of the important judgements.

In Khatri Vs State of Bihar (AIR 1981 SC 928), court granted compensation to victims. In this case police blinded some prisoners. Court held that state is liable to pay compensation for acts of it's servants outside the scope of their power and authority affecting life and personal liberty infringing Article 21.

In Bhim Singh Vs State of Jammu and Kashmir (1984 4 SCC 677), MLA was illegally arrested and prevented from attending assembly session, the supreme court awarded compensation to arrested MLA.

In Nilabati Behra Vs State of Orissa (AIR 1993 SC 1960), Supreme court held that violation of Article 21 is public wrong and state cannot claim immunity from it.

In SAHELI, A woman's resource center Vs Commissioner of Police (1990  1 SCC 422), Court held that state is responsible for tortious act of it's servants committed within the scope of his employment like any other employer. Court further stated that doctrine of state immunity is of feudalistic origin and cannot be applied in democratic country like India.

Conclusion

States are liable for the wrongs committed by their officers, police etc. Courts have been progressive in holding state liable for torts in various judgements.  The question whether state should be granted immunity was considered by Law Commission in it's first report. Commission recommended the relaxation of governmental immunity and doing away with the distinction between sovereign and non-sovereign functions. There was a bill "Government (Liability of Tort) bill" introduced in parliament in 1965, but it was not passed. Till date there is no clear Law dealing with liability of state in Torts. In absence of any Law judiciary had taken the responsibility of widening the area of tortious liability of State.