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Liability Of The State: Tort Actions And Legal Accountability

Tort originates from the Latin word "tortum" which means to twist. Tort has been defined by various scholars. Section 2 (m) of the Limitations Act, 1963[1] defines tort as:

"Tort means a civil wrong, which is not exclusively a breach of contract or breach of trust"

Legal Accountability is an essential foundation of a democratic society as it acts as an apparatus to hold those in power accountable for their actions. The mechanism of Tort authorizes the citizens to hold the state accountable for the harms or injuries suffered by them due to the actions of the state and seek redressal for the same.

In tort, Liability can be defined as:
"Tortious Liability arises from the breach of a duty primarily fixed by law which results in the infringement of private legal rights of another and, for which, civil action for unliquidated damages, injunction, specific restitution or even self � help, as the case may be, can be maintained."[2]

From the above definition we can conclude that following are the main components of tortious liability:
  1. Duty of Care: A duty owed to the plaintiff by the defendant.
  2. Breach Of Duty: If standard care is not observed by the defendant while performing an act leads to a breach of duty.
  3. Damages: Such breach of duty must result in loss or damage to the plaintiff.

In modern jurisprudence, the concept of state liability in the context of tort law and legal accountability is critical. Considerations about the state's liability for criminal acts or omissions have grown in prominence in an era when the state performs an array of roles, from governance to providing public amenities to regulatory oversight.

In this project, the aim is to burrow through the complex and persistently growing field of the liability of state in the actions that amount to tort, explore the legal frameworks and look at precedents that dictate the accountability of the state in tortious acts.

In this project, the historical context of holding a state liable for the tortious acts committed by it is explored along with the evolution of sovereign immunity in historical and current context while providing a glance at the state's liability for acts which amount to public wrongs.

The project seeks to explain the legal accountability and the liability of the state in tortious act.

The objectives of this project are as follows:
  1. Provide a comprehensive understanding of the State's liability in tort.
  2. Trace the development of the state's tortious liability.
  3. To examine the concept of Sovereign Immunity and examine its present status.

Historical Underpinnings of Tortious Liability of State
In order to understand the historical evolution of the state's liability in tort, a look at its evolution in English Law and Indian Law is essential.

English Law:
The evolution of state's liability in tort from the perspective of English law is essential as the entire machinery of tort was introduced in India by the British. The foundational and antiquated maxim of "Rex Non-Potest Peccare" which translates to "The King can do No Wrong", is the cornerstone of the English Constitution.

The following two explanation can be derived from this maxim:
  1. The Sovereign transcends all jurisdiction i.e., any repugnant action cannot be attributed to the Sovereign.
  2. The Crown's prerogative extends to not causing harm to the public i.e., it cannot be utilized against them.[3]

In an 1864 case[4], it was held that the sovereign could not be held liable for any of the acts carried out in personal capacity nor could the sovereign be held liable for any of the acts of the crown's servant that were carried out by the sovereign's command. It further went on to state that such an act which was carried out on the sovereign's command would not make the sovereign liable as a command which was illegal in nature cannot be considered a command and therefore the liability for the such action would lie with the servant who carried out the act and not with the sovereign. Therefore, it can be said that the crown was not liable for any wrongful act even if the acts were expressly authorised by it.

However, it must be noted that this immunity did not extend to the servants and agents of the crown. This led to a situation where in case of any other master-servant relation the master would be held vicariously liable but in the same situation if the servant was in the duty of the crown, then the crown would be exempted from any kind of liability.

In a landmark case[5], a principle was established which stated that the powers of the crown did not super secede the law of that land and held that the ministers, while acting in their executive capacity, could not employ their powers until unless they were entrusted that power by some form of legislation.

In a situation when a case was filed for an act committed by a crown's servant while executing a command of the crown then the crown would nominate a servant who was to be sued instead of the Crown. However, the House of Lords in the case of Adams v. Naylor[6] disapproved of the practice of appointment of a civil servant in stead of the crown to face the proceedings. In this case the Dicey gave a non-Campos Mentis stating that, "On the off chance that the Queen were herself to shoot the P.M through the head, no court in England could take comprehension of act".[7] This case was cited further in various cases[8] in order to drive home the point that this practice is not appropriate.

The Crown Proceedings Act of 1947 established the premise that the crown would be held accountable for all tortious conduct for which an individual of legal age and capacity would be held liable. It would be held liable for:
  1. Torts committed by its servants or agents;
  2. Any breach of the common law duties which a person owes to his servants or agents as their employer;
  3. Any breach of the common law duties attached to property ownership, occupation, possession, or control.
The legislation also established the premise that the Crown's tortious liability may emerge from a breach of a statutory obligation, but it would not be liable for those statutory responsibilities that would not bind a private person.

The crown is now held vicariously accountable for the actions of its servants while on their assigned duties. There is a notable case[9] in which the crown was held accountable for the damages caused by a runaway borstal trainee who fled due to the negligence of the officers who had a duty under their statutory function to control the trainees.

Indian Law:
In the Indian Context the maxim of "King can do no wrong" and the consequential rule that the crown can not be held liable for the torts committed by its servant has never been applicable.

Under the Government of India 1935, and 1915 along with the parent law The Government of India Act 1958, the Secretary of State for India was made liable in the same way that the East India Company was liable for its acts. The consistently cited case[10] for the GOI 1958, Peacock, CJ, observed that the act in this case was committed by the servants of the government in the course of their trading activity and not as a part of their sovereign function and thus rendering the government liable.

The provision for liability of state were continued by the proceeding acts until the implementation of the Constitution of India in which Article 300[11] provides for the liability of state. It reads:

"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 Union of India and the States of Union of India are juristic entities and they are capable of suing and of being sued and this capability arose from the GOI Acts and is being continued in the Constitution of India

It has also been mentioned that the Head of State i.e., the President and the Governors of the States will be entrusted with personal immunity and will not be subject to the jurisdiction of any of the courts mentioned in Article 361 for the acts performed while exercising the powers of their office.

However, the state cannot be held liable for certain acts performed by it and this safeguard against liability is known as sovereign immunity.

The evolving scope of the Doctrine of sovereign immunity in Tort Actions
Sovereign Immunity is granted to the state for the wrongful acts committed by it while performing sovereign functions. The Doctrine of sovereign immunity has an illustrious background that stretches back to antiquity. However, the notion had not been fully implemented in European law until the 17th and 18th centuries. During this time frame, the concept of state sovereignty evolved in its magnitude, and states sought to establish their immunity from litigation in order to maintain their independence.

Historical Context:
A distinction was made in the sovereign and non-sovereign functions during the era of East India Company in the case a landmark case[12] as the company had a dual character i.e., administration and trade. The ruling further distinguished between sovereign and non-sovereign function by stating:

"Where the act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign or private individuals delegated by a sovereign to exercise them no action will lie"

Therefore, it can be said that those functions which cannot be performed by private persons and can only be performed by the state are known as Sovereign Functions.

In one case[13], the court ruled in favour of the government and went on to state that even if the government breaches a contract while performing its sovereign function then also it would not be held liable.

In the case of Secretary of India v. Cockraft[14] the government held that since the act occurred while the government was undertakings the act of maintaining the roads it can not be held liable as the maintenance of military road is a sovereign function.

However, during the colonial period the government could be held liable for the acts that were performed outside the scope of sovereign functions.

In the case of The Secretary of State for India v. Hari Bhanji[15], a carriage owned by the British government collided with a bollock cart and as a reason of the crash the driver of the cart was killed and a suit was filed by the driver's family against the Secretary of the State for India for Negligence.

Significance of the Case:
  1. In India, it established the notion of state liability in tort. This means that the government, like any other individual or entity, can be sued for the tortious activities of its employees.
  2. The case contributed to the erosion of the idea of sovereign immunity as the Madras High Court held that the doctrine of sovereign immunity did not apply to the British government in India.

Current Context:
Sovereign Functions: The functions which only the state has the ability to execute and no external interference is allowed are known as Sovereign Functions. State cannot be sued for these functions. In the judgements given by it in a couple of cases[16], the supreme court gave the following actions performed by the state which would constitute as sovereign functions:
  1. The creation and formulation of law
  2. The administration of justice within its jurisdiction, upholding the law and safeguarding the rights of its citizens
  3. The maintenance of order and stability
  4. The suppression of control within its jurisdiction
  5. The conduct of war and protection of its territories

Tort committed while executing a duty that was a performance of legal obligations is considered a defence in India. It has also been said that the servant's activity in the case of statutory function must be in the fulfilment of sovereign function in order to exempt the state from accountability.

In a landmark case[17], a partner in a jewellery firm located in Amritsar was travelling to Meerut by train at midnight. He was carrying gold and silver jewels and he was arrested by the police constable on the suspicion of smuggling stolen goods. The jewellery along with the him were held in police custody. He was released on bail the next day and after sometime the silver was returned to him, the gold, however was misappropriated by the head constable who fled to Pakistan. The Plaintiff bought the suit against the state of UP of the damages suffered by him. The Supreme Court in this case held that the state held:
  1. When the police officers seized the appellant's jewellery, they were acting within the extent of their duties.
  2. When the police officers misplaced the jewellery, they were carrying out a sovereign function.
  3. The State of Uttar Pradesh is not liable for tortious conduct performed by its servants when performing a sovereign function.

This controversial judgment has not yet been overruled however the implications laid down in this case have been highly diluted by various other cases of the supreme court of India.

In one of the cases[18], A military truck which was being driven rashly by the driving collided with a car and caused an accident on Mall Road in Ambala Cantt. A sepoy and the petitioner sustained several injuries as a direct result of the accident. A case was bought by the petitioner for compensation.

The state claimed immunity on the basis that the driver has at the time was detained for checking army personnel on duty throughout the day and therefore the act fell with the umbrella of sovereign functions. The full bench of Punjab & Haryana High Court held that the checking of duty was a function directly linked with the discipline of the army and therefore fell within the sphere of sovereign function and held that the state was not liable.

Similarly, in another case[19] a military truck was carrying meals which were to be distributed to personnel on duty. It was being driven by a military driver and it caused an accident which resulted in a casualty. The court held that the act was being performed as a sovereign function and therefore the state was not liable for the same.

The state, in modern times can be held liable for the wrongful acts committed by it during the course of performance of non-sovereign function.

In a case[20], a military truck which was carrying coal required to provide heating to the Army General Headquarters in Shimla in the rooms caused an accident. The court held that since the act of transporting the coal could be performed by a private person it was not a sovereign function and held the government liable for the same.

Liability of the state in Public Law Wrongs
The Supreme Court in various cases from time to time has stated that the state cannot take the defence of sovereign immunity in case the act of the state leads to the infringement of the fundamental rights of a person.

Following are the two rationales behind the state's liability in public law wrong:
  1. It is a way of ensuring that the state is held accountable for those actions which cause harm to the fundamental rights of an individual.
  2. It provides for compensation for the damage that the victim suffered by the violation of their fundamental rights.
In one of the landmark cases in this matter[21], the petitioner was acquitted by a session court however his release had been delayed by 14 years from the date of judgement. A Habeus Corpus writ was filed in order to demand his release along with damages for rehabilitation, reimbursement of expenses on medical treatment and compensation for unlawful detention.

The state could not provide any viable defence and the court held the state liable and went on to state that the order of compensation so granted did not take away the right of the petitioner to bring a suit against the state and the concerning officers for damages.

In another similar case[22], the petition was filed by the mother of a convict who has died in prison as a consequence of the injuries suffered by him in police custody. The mother sent a letter to the Supreme Court and the court decided to treat it as a writ petition under Article 32[23] of the Constitution.

In this case the state was held liable and Justice Verma observed that the principle laid down in the Kasturilal case was limited to the state's liability in tort and the breach of fundament rights is public wrong therefore the defence of sovereign immunity would not be applicable. In various cases related to custodial death, the Supreme Court has time and again stated that the human rights are universal rights.

Following are some of the observations made by the court in this case:
  1. The Supreme Court of India has clarified that remedies under Articles 32[24] and 226[25] of the Indian Constitution can be pursued in all cases where there is an infringing violation of fundamental rights, irrespective of whether an alternative remedy is available or the claim is factually controversial.
  2. The Court additionally made a distinction between the State's liability under private law and the State's liability under public law, and has held that the defence of sovereign immunity and other exceptions to strict liability are inapplicable in cases where the State has breached a citizen's fundamental rights.
  3. The Court has also ruled that compensation is a permitted remedy under Articles 32[26] and 226[27] and that the State is obligated to pay compensation for any violation of basic rights.

The trilogy of cases[28] establishes the principles for awarding compensation to individuals who have been illegally detained by the state for the violation of their rights.

The vast majority of cases in which the state has been held accountable for violations of fundamental rights are based on Articles 20[29] and 21[30]. However, there are additional cases that deal with the violation of other fundamental rights. The Supreme Court reversed the seizure order of numerous volumes in the Gajanan Vishweshwar case[31] because the relevant authority failed to provide a valid rationale for confiscation under Section 111[32] of the Customs Act. The administration was fined Rs. 10,000 for violating the petitioner's right under Article 19 (1)(a) of the Indian Constitution.

Therefore, from the above given examples it can be concluded that the violation of fundamental right strips away the state's defence of Sovereign Immunity as the violation of Fundamental Rights is a wrong against the world at large or 'Jus in Rem' and as such it not viewed as a harm against one individual but a harm against the society at large.


The need of holding the state accountable for public law wrongs that violate people' fundamental rights has been recognized by the evolving jurisprudence. Landmark cases have highlighted that remedies under the Indian Constitution can be pursued for such infractions, regardless of whether alternative remedies are available. This underscores the state's commitment to protect fundamental rights and compensate victims.

The concept of sovereign immunity is archaic in nature. In the modern context it is a rather peculiar practice to allow the state to shed liability by shielding behind the veil of sovereign function. The state must be held liable for wrongful acts committed by it without classifying the act as a sovereign or non � sovereign function.

It is essential to hold the state accountable for its actions as it would be unfair to allow the state to get off scott-free without paying for the consequences of their action. Abolishing sovereign immunity would ensure that the people who have suffered harm by the state's tortious action while performing the sovereign function can get compensated for their loss.

It has even been observed by the court[33] even Britain has abolished the maxim of "King can do no wrong" and since we inherit the concept of torts from the English Law why cannot India abolish the concept of sovereign immunity.


  • Akshay Sapre, Ratanlal & Dhirajlal: The Law of Torts, Lexis Nexis, 2021
  • R.K. Bangia, The Law of Torts, Allahabad Law Agency, 2023
  • A.K. Jain, Law of Torts, Ascent Publications, 2012
  • The Customs act, 1962, No. 52, Acts of Parliament, 1962, India
  • The Limitations act, 1963, No. 36, Acts of Indian Parliament (1963), India
  • K. Indumathi, R. Dhivya, "Liability of The State in Tort", 5, International Journal of Pure and Applied Mathematics, 1973, (2018).
  • The Limitation Act 1963 � 2(m), No. 36, Acts of Indian Parliament (1963), India
  • A.K. Jain, Law of Tort, 8, Universal Publishing Co Ltd 2010.
  • Akshay Sapre, Ratanlal & Dhirajlal: The law of Torts, 49, Lexis Nexis 2021
  • Tobin v The Queen, (1864) 16 CB (NS) 310
  • Entick v Carrington (1765) 19 St Tr 1030
  • "Adams v. Naylor, (1946) 2 All (ER) 241.
  • K. Indumathi, R. Dhivya, "Liability of The State in Tort", 5, International Journal of Pure and Applied Mathematics, 1973, 1985, (2018).
  • Royester v. Cavey, (1946) 2 All (ER) 642.
  • British Railway Board v. Herrington (1971) 1 All (ER) 749.
  • Home Office v. Dorset Yatch Co, (1970) 2 All (ER) 294 (HL).
  • Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, (1861) 5 Bom. H.C.R. App. I,p.1."
  • INDIA CONST. art. 300
  • "Id
  • Nobin Chandra Dey v. Secretary of State for India, I.L.R., 1 Cal. 11.
  • Secretary of State v. Cockraft, (1916) I.L.R., 29, Mad. 351.
  • The Secretary of State for India v. Hari Bhanji, I.L.R., (1882) 5 Madras 273.
  • State of Bombay v. Hospital Majdoor Sabha, 1960 AIR 610,
  • Nagpur Cooperations v. Employees, 1960 AIR 675.
  • Kasturi Lal Ralia Ram Jain v. State of U.P., A.I.R. 1965 S.C. 1039.
  • Baxi Amrik Singh v. Union of India, (1973) 75 P.L.R. 1.
  • Union of India v. Harbans Singh, A.I.R. 1959 Punjab 39.
  • Union of India v. Smt. Jasso, A.I.R. 1962 Punjab 315.
  • Rudal Shah v. State of Bihar, A.I.R. 1983 SC 1086.
  • Nilabati Behra v. State of Orissa A.I.R. 1993 SC 1960.
  • INDIA CONST. art. 32
  • Id.
  • INDIA CONST. art. 226
  • Id.
  • INDIA CONST. art. 226
  • Supra at 13.
  • Sebastian M. Hongray v. Union of India, 1984 A.I.R 1026.
  • Bhim Singh v. State of J&K, A.I.R. 1986 SC 494.
  • INDIA CONST. art. 20
  • INDIA CONST. art. 21
  • Gajanan Visheshwar Birjur vs Union Of India (Uoi) And Ors., 1994 (72) ELT 788 SC.
  • The Customs Act, 1962 � 111, No. 52, Acts of Parliament, 1962, India
  • State of Rajasthan v. Vidhyawati, 1962 AIR 933.

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