State Liability for Torts: Can the Government Be Sued for Wrongful Acts?

Introduction

In daily life, if one person harms another through carelessness or intentional wrong — for example, if a private car driver causes an accident or a shopkeeper’s negligence injures a customer — the victim can usually sue for compensation. But what happens when the harm is caused by the government or its employees? For instance, if a government bus driver causes a fatal accident, if a person dies in police custody due to torture, or if a patient suffers due to negligence in a government hospital—can the state be sued like a private person?

The answer has changed over time. Today, the government can be held responsible for many such wrongful acts. However, the rules governing the liability of the state are not exactly the same as those applicable to ordinary individuals.

Historical Background: “The King Can Do No Wrong”

Under old English law, the king (the state) enjoyed complete immunity. The maxim was “The king can do no wrong.” Citizens could not sue the government for torts committed by its servants.

England later relaxed this absolute immunity through laws. In India, the position developed mainly through court judgments rather than one single comprehensive statute.

Sovereign and Non-Sovereign Functions

Indian courts created an important distinction:

A. Sovereign Functions

These are acts that only the state can perform as part of its governmental powers. Traditionally, the State enjoyed immunity for torts committed while performing these functions.

Examples

• Maintaining law and order (police functions)
• Defence of the country and military operations
• Administration of justice (courts and judicial acts)
• Collection of taxes
• Making and implementing laws
• Conducting foreign affairs and diplomacy
• Keeping custody of seized property by police (as held in the Kasturilal case)
• Declaring emergency or imposing curfew

B. Non-Sovereign Functions

These are ordinary or commercial activities that private persons or companies can also perform. The State is generally liable for torts committed in these activities, just like a private employer.

Examples

• Running transport services (buses, railways, airlines)
• Operating government hospitals and medical services
• Running factories, industries, or commercial undertakings
• Constructing and maintaining roads, buildings, or public works (when done commercially)
• Supplying electricity, water, or other public utilities on payment
• Banking and insurance activities by government corporations
• Educational institutions run on commercial lines
• Hiring out government vehicles or property for private use

C. Simple Difference

Liability of State for Victims of State Excesses

The State is liable to pay compensation to victims of State excesses such as custodial deaths, police brutality, illegal detention, or other violations of fundamental rights. Indian courts have developed the concept of “constitutional torts” under Articles 21, 32, and 226 of the Constitution, holding the State responsible even when the wrongful act is committed during sovereign functions.

In Rudul Sah v. State of Bihar (1983), the Supreme Court ordered compensation for illegal detention lasting over 14 years. In Nilabati Behera v. State of Orissa (1993), the Court awarded compensation for custodial death and clearly distinguished this public-law remedy from ordinary private-law damages. Further, in D.K. Basu v. State of West Bengal (1997), the Court laid down detailed guidelines against custodial violence and reaffirmed the State’s liability to pay compensation for violation of the right to life.

Through these landmark judgments, the Supreme Court has ensured accountability and provided effective relief to victims of abuse of power by government officials.

Important Landmark Cases

Peninsular and Oriental Steam Navigation Co. v. Secretary of State (1861)

This early case introduced the distinction between sovereign and non-sovereign functions in India. The court held that the government could be sued for acts done in a non-sovereign capacity.

State of Rajasthan v. Vidyawati (1962)

A government jeep driven by a state employee caused a fatal accident due to negligence. The Supreme Court held the State liable. It observed that the old doctrine of absolute immunity was not suitable for a modern welfare state.

Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (1965)

Police seized gold and silver from a person and kept it in the police malkhana. The gold was later stolen due to the negligence of police officers. The Supreme Court held that the State was not liable because keeping seized property was treated as a sovereign function. This decision faced strong criticism.

Later Developments and Liberal Approach

After Kasturilal, courts gradually moved away from rigid immunity. In many cases involving police excesses, custodial deaths, and medical negligence in government hospitals, the State has been held liable. The Supreme Court has also recognized “constitutional torts” under Articles 21, 32, and 226 of the Constitution. This allows courts to order compensation for violations of fundamental rights even without proving all traditional elements of a tort.

Important International Case Laws on State Liability / Sovereign Immunity

Present Position in India

• There is no complete code on state liability for torts.
• The State is generally liable for torts committed by its servants while performing non-sovereign functions.
• The distinction between sovereign and non-sovereign functions is still mentioned, but courts apply it less strictly today.
• When fundamental rights (especially the right to life under Article 21) are violated, the State can be ordered to pay compensation even if the act was done in a sovereign capacity.
• Vicarious liability principles apply: the state is responsible for the wrongful acts of its employees done in the course of employment.
• The old English maxim “the king can do no wrong” has no place in modern Indian law.

Exceptions and Limitations

Even though the State’s liability has expanded significantly, it is not absolute. The State can still claim immunity in certain limited situations, mainly when the act falls under pure sovereign functions.

Examples of Situations Where Immunity May Still Apply

• Acts related to defense operations and military activities
• Judicial acts performed by judges in their official capacity (judges are generally protected for decisions taken while discharging judicial duties)
• Certain high-level policy decisions involving pure governmental functions

However, courts today apply this immunity very narrowly. The overall trend in Indian law is towards greater accountability of the state. Even in cases involving sovereign functions, if there is a violation of fundamental rights (especially the right to life under Article 21), the courts often direct the State to pay compensation to the victim. Thus, the old idea of complete immunity has largely given way to a more balanced and citizen-friendly approach.

Why This Area of Law Is Important

In a modern democratic state, the government performs a wide range of activities that directly affect the daily lives of citizens—from maintaining law and order to running hospitals, transport services, and public utilities. When government employees cause harm through negligence, carelessness, or abuse of power, ordinary citizens must have an effective legal remedy.

State liability plays a crucial role in ensuring accountability. It prevents the government from hiding behind the old doctrine of immunity and forces it to take responsibility for the wrongful acts of its servants. At the same time, it provides justice and compensation to the victims, thereby protecting the rights and dignity of individuals. In short, this area of law strengthens the rule of law and builds public trust in the system.

Conclusion

State liability for torts has travelled a long journey—from the old doctrine of complete immunity to the present position of substantial accountability. Although the distinction between sovereign and non-sovereign functions still exists, Indian courts have steadily expanded the liability of the State, particularly in cases involving violation of fundamental rights. Today, the government can no longer hide behind the outdated maxim “the king can do no wrong.” The law continues to develop in the direction of greater responsibility, transparency, and stronger protection of citizens’ rights.

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