INTRODUCTION India, as a State, is a mixed economy of vast population.

A mixed economy, as in common parlance, is said to be an economy which includes traits of both a capitalistic, as well as a socialistic economy. Now even though the private sector in India is free to a great extent to form its own policies and so on, there are, however, certain restrictions placed on such freedom by the government. Also, by virtue of being a semi-socialistic economy, the government still plays a major role in almost all aspects of the economy. This means that there is a lot of interaction between the State and the citizens of India, may it be in the form of trading with government companies, or interacting with the State officers such as the police, or the bureaucrats, etc. It is hence of utmost importance that the State should be made liable for all those acts of its officers which cause harm to any of the citizens.

HISTORY OF TORTIOUS LIABILTY OF STATE IN INDIA The stance of the Indian Judiciary on the liability of the State for the acts of omission or commission committed by its servants has never been the same, and has kept on changing over the years with varied judgments. The Common Law maxim Rex Non Potest Peccare (The King can do no wrong) provided absolute immunity to the Crown in that neither the Crown, nor could its employees or servants ever be held liable for any wrong committed by them. This was, however, never followed in India. The East India Company initially came to India as a trading firm. However, later on it started to rule a large part of the country and the scope of its powers and authority was defined by legislations passed by the British Parliament. After the 1857 uprising1 the company was dissolves and the rule passed over directly to the British Crown. During this period the liability of the Crown depended upon the powers and authority of the Head of the state. In preindependence period the liability of the State was a major question which confounded all the courts. At this time a distinction was made between sovereign and non-sovereign functions, with

The revolt of 1857 was basically a sepoy mutiny. It was triggered by the fact that the sepoys were asked to bite on cartridges which were greased with the fat of cows and pigs. This was opposed to the religious sentiments of both Hindus and Muslims and thus the army revolted. This was the first struggle for the Indian independence.

complete immunity being given to the former. However, the scope of sovereign or non-sovereign functions was never clearly defined, and hence depended on judicial interpretation. The first judicial interpretation of State liability during the East India Company was made in John Stuarts case in 1775. For the first time ever it was ruled that the Governor General in Council was not immune to the Courts jurisdiction as far as cases regarding dismiss al of government servants was concerned. Another prominent case dealing with the State liability was Moodaly V. The East India Company2. In this case the Privy Council declared that the common law doctrine of sovereign immunity did not apply to India. The first legislation defining the administration of the country was the Government of India Act 1858. Section 58 of the Act talked about tortious liability of the State. The section read that - "The Secretary of State in Council may sue and be sued as well in India as in England in the name of the Secretary of State in Council as a body corporate and all persons and bodies politic shall and may have and take the same suits remedies and proceedings legal and equitable against the Secretary of State in Council of India as they could have done against the said company, and the property and effects hereby vested in Her Majesty for the purposes of the Government of India acquired for the said purpose shall be subject and liable to the same judgments and executions as those vested in the said Company would have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company." Sec. 68 of the said Act protected members of the Council from personal liability. One of the most important cases of that time period pertaining to the tortuous liability of the State was Oriental Steam Navigation v. Secretary to the State of India3. It was decided by the Calcutta High Court, and a clear distinction was made between the acts done in exercise of sovereign powers4 and acts conducted otherwise. The Court, in its ruling, also emphasized the fact that the East India Company was not a sovereign in itself, but merely a representative of the Crown. It was ultimately held that complete immunity was to be given for all acts performed in exercise of sovereign authority, while no immunity was allowed for the non-sovereign acts. The facts of the present case were that due to the negligence of a servant of the Government, working
2 3

1775 (1 Bro-CC 469) (Bombay High Court Reports Vol. V, 1868-69) Appendix I 4 Powers in relation to acts over which the government has a monopoly and nobody else apart from the government can perform such acts. For eg: in India the government has a monopoly in railways. Thus any act related to carrying out the functions of the railways would be a sovereign function.

in a dockyard, an accident happened and the horse of a carriage hired by an individual was injured. Calcutta High Court had in a subsequent decision adhered to the same view of distinguishing the sovereign and non-sovereign functions. However, the Bombay and Madras High Courts did not agree with the same.

PRESENT SITUATION OF TORTIOUS LIABILITY OF STATE IN INDIA As regards the present situation of the liability of the State, Article 361 of the Indian Constitution expressly exempts the President and the Governors, who are heads of states, from personal liability of any sort.

Another article which talks about the liability of the State is Article 294. This falls under Chapter III, Part XII of the Indian Constitution, and Article 294(b) provides that the liability of Union Government or State Government may arise out of any contract or otherwise. The word "otherwise" would include various liabilities including tortious liability also. 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.

Article 300 is also to be taken into account when talking about tortuous liability. This Article provides that the State of India can sue or be sued as a juristic personality. It reads that "The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. The first part of the Article defines who can be sued, and in what name and capacity, while the second part defines the extent of liability of the State.

The first important case in the post constitution era was State of Rajasthan v. Mrs. Vidyawati5. Another important case was the case of Kasturilal Ralia Ram v. State of Uttar Pradesh6. This case, however, is considered to be an erroneous one since full immunity had been given to the State and its officers. Thus most of the judges distinguish this case from all the others, and it has hardly ever been used as precedent. These two cases, along with another case of Nagendra Rao7, have been analyzed in detail in under the next sub-heading, and their main principles have been applied to each other to clearly bring out the difference between all of them.

There is still some ambiguity as to the Liability of the State and its officers, and most of the cases depend upon judicial interpretation and attitude. However the most common practice is to distinguish between the sovereign and non-sovereign functions. While full immunity is given to the former, none is given to the latter.

CASE ANALYSIS AND COMPARISON OF THE VIDYAWATI CASE, KASTURI LAL CASE, AND NAGENDRA RAO CASE 1. State of Rajasthan v. Mst. Vidyawati, AIR 1962 SC 933 Brief Summary of the Case: After the commencement of the Constitution, this is perhaps the first major case which came up before the Supreme Court for the determination of liability of government for torts. In this case, the claim for damages was made by the dependents of a person who died in an accident caused by the negligence of the driver of a jeep maintained by the Government for official use of the Collector of Udaipur while it was being brought back from the workshop after repairs. The Rajasthan High Court took the view-that the State was liable, for the State is in no better position in so far as it supplies cars and keeps drivers for its Civil Service.

5 6

AIR 1962 SC 933 1965 SCR (1) 375 7 1994 SCC (6) 205

In

the

said

case

the

Honourable

Supreme

Court

has

held

as

under:

Act done in the course of employment but not in connection with sovereign powers of the State, State like any other employer is vicariously liable.

Analysis of the Case: The common law system followed a policy of rex non potestpeccare as far as off ences committed by the State or its authorities were concerned. This Latin maxim, when translated to English, means The King can do no Wrong. Thus according to the common law the state or its authorities could not be held liable even if they commit a wrong, and it is proved in a court of law. In India, however, this principle was never followed and hence the State could be held liable for its wrongs. This is exactly what happened in the present case. Further, there is no act or provision of law which explicitly states that the state cannot be held liable for the wrongdoings in India. Also, the Court held that it was against the general interest of the public if the state was given unlimited authority to commit all sorts of wrongs without being held liable for the same. The court further went on to say that in India the people have had the right to sue the state for its wrongdoings right from the time of the East India. Further, Article 300 of the Indian Constitution bestows the right upon the Parliament to legislate on any subject which it deems fit. In case no law has been made regarding a particular circumstance, then the practices since before Constitution would be taken into consideration and decision will be passed accordingly. Since no law has been made on this subject, and the State could be sued at the time of the East India Company, hence the State can be held liable. The Court, on investigation, did find the man guilty of negligent and rash driving. Also, bringing back a jeep from repairs is not a sovereign function of the State, even if the jeep belongs to a State official. Also, the driver of the jeep had been employed by the Government. The government can thus be said to be the master while the driver was its servant. The state official had ordered the driver to go and bring the jeep back from the repairs. Thus the job being done was an authorized act, albeit in an unauthorized manner. Since the master can be held liable for

such a wrong committed by its servant, hence the State can be held liable for this misfeasance of its servant.

2. KasturilalRalia Ram v State of Uttar Pradesh, 1965 SCR (1) 375 Brief Summary of the Case: In this case the rule laid down in State of Rajasthan v Vidyawati was not followed, which further confused whether sovereignty of the state should be a valid defense or not. In this case, the Supreme Court followed the rule laid down in P.S.O. Steam Navigation case by distinguishing Sovereign and non-Sovereign functions of the state and held that abuse of police power is a Sovereign act, therefore State is not liable14. The facts of the case were that a partner of Kasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone to Meerut for selling gold and silver, but was taken into custody by the police of the suspicion of possessing stolen property. He was released the next day, but the property which was recovered from his possession could not be returned to him in its entirety inasmuch as the silver was returned but the gold could not be returned as the Head Constable in charge of the Malkhana misappropriated it and fled to Pakistan. The firm filed a suit against the State of U. P. for the return of the ornaments and in the alternative for compensation. It was held by the Apex Court that the claim against the state could not be sustained despite the fact that the negligent act was committed by the employees during the course of their employment because the employment was of a category which could claim the special characteristic of a sovereign power.

Analysis of the Case: In this case, the decision of The Vidyawati case was distinguished, and hence not applied. 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. Sovereign immunity is a valid defense to an action for tort, even according to present day sensibilities. Thus, if the State, or its officers, are performing their sovereign duty (duty as is

allotted to them by any act or provision of law, or is their designated duty under the contract of employment with the State), they cannot be held liable for any wrong committed by them during the performance of such duty. In the present case, the police officers were exercising their sovereign function of searching and seizing the property of any person on grounds of suspicion. This power has been conferred upon them by a statute and hence is a sovereign power. The court has admitted to the fact that the police were negligent in dealing with the property of Kasturi Lal Ralia Ram, and that he suffered a real damage due to their negligence. However, since this negligence was committed by the police during the exercise of their sovereign functions, the police could not be held liable for the tort committed. The case judgement has been highly condemned and is hardly ever used as a precedent. Most of the Courts have distinguished the case since it was felt that even though the State was essentially performing a sovereign function, it should still not be given the right to harm or damage the people. If more and more officers are let free, then they would all become careless with their jobs which could harm the citizens to a great extent. Also, a person suffering harm due to somebody elses negligence goes against the principles of natural justice. Thus, the Courts in later years, by liberal interpretation, limited the immunity of State by holding more and more functions of the State as non-Sovereign. This enabled the Courts to hold the State liable in more number of cases.

3. N. Nagendra Rao& Co vs State Of A.P, 1994 SCC (6) 205 Brief Summary of the Case: The appellant carried on business in fertilizer and foodgrains under license issued by the appropriate authorities. Its premises were visited by the Police Inspector, Vigilance Cell on 11 th August 1975, and huge stocks of fertilizers, food grains and even non-essential goods were

seized. On the report submitted by the Inspector, the District Revenue Officer (in brief 'the DRO') on 31st August 1975, in exercise of powers under Section 6-A of The Essential Commodities Act, 1955, directed the fertilizer to be placed in the custody of Assistant Agricultural Officer (in brief 'AAO') for distribution to needy people and the food grains and

non- essential goods in the custody of Tehsildar for disposing it of immediately and depositing the sale proceeds in the Treasury. The AAO did not take any steps to dispose of the fertilizer. Since the fertilizer would have deteriorated, a request was made by the appellant to either deposit it at a particular place or to release it for deposit of its sale price. Again no action was passed by the concerned authority. On investigation the appellant was only held responsible for not maintaining correct records. Apart from that all charges of any serious infringement, such as black marketing or adulteration or selling at higher price than the controlled price, were dropped. An order was passed to release the stock but the DRO failed to do so. After passage of a lot of time the stock was released at which point of time it had been badly damaged both in terms of quality as well as quantity. The Supreme Court finally held that when due to the negligent act of the officers of State a citizen suffers any damage the State will be liable to pay compensation and the principle of sovereign immunity of State will not absolve him from this liability.

Analysis of the Case: The Court held that the relationship between the appellant and the respondent was that of a bailor and bailee, and the bailee could not refuse delivery of the goods, nor it could delay it when it was demanded by the appellant. It further held that the deterioration of the goods in the custody of the respondents was not in exercise of sovereign function of the State. The courts agree to the fact that the seizure of the goods was in accordance with the sovereign function of the authorities. However the proper maintenance of the seized goods was also the responsibility of the officers, and hence they can be held liable for any lapses in the maintenance of such goods due to which the owner has to suffer a loss. Further, there was no valid reason for further detaining the goods once the release order had been passed by the Sessions Judge. Since all these are governmental authorities and are on the payroll of the State, hence the State can be said to be the master while all these officials are the servants of the State. Hence the State can be held vicariously liable for all the misdeeds or wrongs of its servants. The distinction between the sovereign and non-sovereign functions of the State was considered at length in the present judgement. A few important points from the judgement are:

a. Non-existence of the distinction between sovereign and non-sovereign functions of the State in the present context. b. Non-liability of State for political acts. c. Immunity extended only up to political acts. d. The demarcating line between primary and inalienable functions in that the State can evade liability only if the function performed is an inalienable function of the State. e. The misfeasance doctrine was laid down in that the negligence of its officers can be linked to the vicarious liability of the State.

Application of Vidyawati Case Principle to NagendraRao Case: The case of Vidyawati can be said to be a precedent of sorts in the case of Nagendra Rao, since the essential principle applied in the judgement, as well as the facts of the two cases are broadly the same. In both the cases, State authorities were performing non-sovereign functions. The functions were performed in a negligent manner (misfeasance), due to which the appellants in both the cases had to suffer a loss. The similar principles in both the cases include vicarious liability of the State, misfeasance by public officers, and non-sovereignty of certain functions of the State. In the case of Vidyawati, the State official was bringing back a jeep after repairs. Now even though the jeep was used for official purposes only, the act of bringing it back in itself was not a sovereign function. Anybody can bring his/her car back from repairs. Hence the State was held liable due to negligence and rash driving of the driver. Similarly, in the case of NagendraRao, the act of seizing the fertilizers under suspicion was a sovereign function. However, delaying the return of the goods and non-maintenance of the fertilizer was not a sovereign function and hence the State could be held liable. The basic ideology behind this is that the public should not unnecessarily suffer due to the negligence of the State and its officers. Also, unrestricted power should not be given to the State and its officials so that they become overtly careless about their job. If sovereign immunity is not restricted as a defense, then all the State officials will keep using it at all times and hence

getaway with even major negligence. This is unfair and goes against the public morality. Thus to keep the State and its officials accountable and responsible, and to restrict arbitrariness in their actions, it is of utmost importance that the State be held liable for the wrongs of its servants. Another important point to be noted is the fact that in the Vidyawati case it was held that if in case there is no law made by the Parliament with regards a certain subject or circumstance, then the rule to be followed is the general practice as it was at the time of the British rule. The concept of liability of the State has not been codified by the Parliament, nor is it the subject matter of any law. Thus the rule to be followed is the practice that was at the time of the British Rule. Under the British rule also the State could be held liable for wrongs committed by its officers. Thus in the present case also it is only fair to hold the State liable for its wrongdoings.

Differentiation of Kasturi Lal Case from the Nagendra Rao Case: The facts of the two cases are hugely different from one another. In the Kasturilal Case, the police had jailed a person and kept his goods in custody, both of which were sovereign functions of the State officials. Now even though one of the police officials ran away with the jewelry, he did so while discharging a sovereign function. Since the wrong was committed while performing a sovereign function, the State could claim the defense of sovereign immunity. In the Nagendra Rao case, however, it has already been proved that the authority was not discharging a sovereign function. Hence the facts of the two cases are very different from each other due to which the Kasturi Lal case has been differentiated from the Nagendra Rao case, and it cannot be held as a precedent for the same.

CONCLUSION Keeping in mind all the above observations it is evident that the law is still not completely decided and there is no sure shot formula that can be used to decide whether the government can be held liable or not, and if yes then under what circumstances should it be held liable. The only thing that can be said with a certain amount of certainty is the fact that there was never a time in India when the State was completely immune to the consequences of its act. However, the degree

of accountability has varied over the years. Apart from a few Articles of the Constitution and the First Report of the Law Commission of India, there is no definitive legislation which lays down solid guidelines as to the Government accountability. There is thus a need to legislate on this subject matter, so that all ambiguity is removed, and that there are some solid guidelines to be followed so that there is no arbitrariness in the decisions of the different courts.

REFERENCES

Books Ratanlal and Dhirajlal (2013), Law of Torts, Lexis Nexis, Hardback (2013) Avtar Singh and Harpreet Kaur (2013), Introduction to the Law of Torts and Consumer Protection, Lexis Nexis, Paperback (2013)

Journals Sahadev Dan (2009), New Dimensions on the Concept of Sovereign Immunity in the Changing Socio-Economic Conditions of the Society (A Study of Legislative and Judicial Trends in India), University of Rajasthan. (Retrieved on 10/12/2013, at

http://research.uniraj.ac.in/synopsis/law/Sahadev%20Dan/part1.pdf) Franois du Bois (2011), Human Rights and the Tort Liability of Public Authorities, Law Quarterly Review, Vol. 127, PP 589-609, (at

http://www2.le.ac.uk/departments/law/people/documents/Du-Bois-Human-Rights-andthe-Tort-Liability-of-Public-Authorities.pdf, Retrieved on 11/12/2013)

Websites www.redhouseemissions.com (http://redhouseemissions.com/article/01072013/vicarious-liability-ofstate.html#.UrQpr_QW2Qx) www.indiankanoon.org (http://indiankanoon.org/doc/1452163/)

www.lawmin.nic.in (http://lawmin.nic.in/ncrwc/finalreport/v2b1-13.htm)