Before 1947, the King of England and India couldn't be sued in his own courts
because of the sovereign immunity doctrine. The Federal Torts Claims Act,
1947 and The Crown Proceedings Act. 1947 changed this. They allowed people,
who suffered because of harmful actions, to sue the Crown and get
The Indian Constitution's Article 300 says Government or State can be sued just
like they could before the Constitution was made in 1858.
The State acts through people. If someone working for the State does something
wrong, the State is responsible. This responsibility is called the State's tortious liability.
This responsibility is based on two principles: 'Respondeat Superior' means
'the boss is responsible' and 'Qui facit per alium facit per se,' means 'If
someone does something through another person, it's like they did it
To figure out if the State is responsible for its employees' wrong actions,
the State's tasks are divided into two types:
- Sovereign functions
Functions exclusive to the Government, not private individuals, consist of
providing essential services. It's not about making a profit. The Government
takes on roles only it can do, primarily for public service, not for financial
benefits. They aren't held accountable for their workers' tortuous acts, like
those in the military, police, or prisons.
The sovereign tasks of Government
are essential roles only it performs. These are part of governing and cannot
be sued due to sovereign immunity. This prevents the Government from being
sued in tort, or civil wrongs that cause harm. These sovereign tasks typically
involve justice administration, public order and safety maintenance, and
legislative and executive power exercising.
The Government does some tasks as
a sovereign authority, called sovereign functions. These tasks are part of its
basic work and typically shield it from certain legal issues, like tort claims,
thanks to what's known as sovereign immunity. This immunity often keeps the
Government from being sued for civil wrongs�actions that hurt people or their
possessions - when they're related to those governmental tasks.
- Non-Sovereign functions:
Some functions can also be done by private people. These often have a profit
goal, in respect of which compensation is always given as Government is held
liable for tortuous acts of its servants. For instance, Motor Transport Company,
Co-operative Super Market, etc. The Government has the responsibility if its
workers act wrongly.
Non-sovereign tasks are the duties the Government does, but they are not its
main jobs. Unlike the usual Governmental roles that are immune from some
legal issues like tort claims, these tasks are not. They are like the deeds
of an everyday person or business. The instances of these Government roles
when it comes to tort law are noted below:
- Operation of Commercial Enterprises: As a rule, when the Government undertakes commercial endeavors like engaging in business or operation of a commercial enterprise, it is generally liable for the same tort liability as any private business. One example of this is where a government-owned utility company carelessly maintains its infrastructure, hence leading to injuries and destruction of properties which could lead to tort claims against the government.
- Property Management: Such management may include real estate properties under ownership of Governments such as public buildings, parks, and recreational facilities among others. In case of tort claims against the Government, it can be held responsible when there is negligence in property management such as deficient maintenance or insufficient security leading to harm or injury to individuals.
- Regulatory Functions: For instance, Government agencies are prone to liability when engaging in regulatory activities like setting safety measures or inspecting. If an individual is injured while the agency failed to carry out its legal requirement, it will be at fault.
- Public Transportation: Similarly, Government-owned or operated public transport systems like buses and subway can be held liable for tort claims when accidents and injuries result from negligence.
- Healthcare Services: A Government-run healthcare facility, e.g., a case of a public hospital, can also be sued for medical negligence like a private healthcare provider when the health workers under them commit negligent practices in their care.
- Educational Institutions: Public school or university may be sued for the tort under the condition that it was unreasonably negligent by denying a child access to a safe teaching/learning environment or when the employee while at work acted inappropriately (i.e., committed a tort).
Torts against the State: include a variety of scenarios. These scenarios
involve Government bodies or officials held responsible for harmful actions or
failures resulting in harm or injury to individuals or entities.
The examples of
some torts against the State are given below:
- Public Service Negligence: A Government authority looks after public property e.g., a park, but doesn't fix a hazard. This leads to a slip accident and someone gets hurt. The hurt person can claim compensation by filing a negligence complaint against the Government entity.
- Police Misconduct: A person might be a victim of excessive force or illegal arrest by a cop. If this action violates the individual's fundamental rights, a claim could arise under various laws.
- Defamation from a Government Official: An official might give false statement about a private citizen. This might hurt the person's image. This might result in a defamation claim against the official.
- Wrongful Imprisonment: A person might be mistakenly held or jailed by the authorities; even if just for a short time, without the correct legal justification. A claim of wrongful imprisonment can be made.
- Malicious Prosecution: A prosecutor may unjustifiably start criminal charges against someone, due to malice. If these charges are eventually dropped, the accused can present a malicious prosecution claim.
- Damage to Property: Government work can sometimes accidentally harm nearby buildings. This includes damage like flooding or structural damage. If this happens, people can ask the Government for compensation to cover the damage.
- Violation of Environmental Laws: Government groups might violate environment rules. This could harm people or places. For instance, the Government might not deal with dangerous waste properly and harm those living close by.
- Poor Medical Care in Prisons: In scenarios where prisoners don't get the right medical care, or are treated in a harsh and unusual way, they can make a case against the responsible Government agencies for compensation.
- Not Following Due Process Rights: If Government actions don't give people their justice rights, such as a fair trial or the right to appeal, people can make a case for infringement of rights.
- Failure to Protect: Government groups need to protect those who are at risk. This includes children and the elderly. If they do not, and people get hurt, like in cases of child abuse or neglect, they can be held to account.
- Saheli v. Commissioner of Police: Government compensation was awarded to the parents of a child who died due to police brutality, indicating that this was not considered a sovereign function.
- Nilabati Behera v. The State of Orissa: Compensation was granted to the mother of a victim who died in police custody, highlighting the responsibility of the State in such cases.
- Kumari v. the state of Tamil Nadu: The government was held responsible for the death of a child who fell into a wastewater pit, as it was considered a non-sovereign act.
- State of Bihar v. Rudel Shah: The State was liable to compensate a wrongly imprisoned petitioner, as the doctrine of sovereign immunity did not apply in this case.
- Vidyavathi v. State of Rajasthan: The government was held accountable for the death caused by a rash and negligent government jeep driver, as it was not a sovereign function.
- Shyam Sunder v. State of Rajasthan: Compensation was granted to the widow of a deceased person who died due to the negligence of a government truck driver, highlighting that this was a non-sovereign function.
- Osman v. United Kingdom: The European Court of Human Rights established that the government's failure to prevent a potential risk could violate human rights.
- Ridge v. Baldwin: The case emphasized the importance of fair procedures in administrative actions, even within public institutions.
- Monell v. Department of Social Services: Local governments could be held responsible for civil rights violations if their official rules and practices lead to such violations.
- Nobin Chunder Dey v. Secretary of State: The court ruled that the denial of a license was a sovereign function, and the State could not be held accountable for it.
- Peninsular & Oriental Steam Navigation Company v. Secretary: This case clarified the distinction between sovereign and non-sovereign responsibilities of the state, indicating that sovereign powers are not subject to liability.
- Law of Torts, Usha Jaganath Law Series
Written By: Md.Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565