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
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."
From the above definition we can conclude that following are the main components
of tortious liability:
- Duty of Care: A duty owed to the plaintiff by the defendant.
- Breach Of Duty: If standard care is not observed by the defendant while
performing an act leads to a breach of duty.
- Damages: Such breach of duty must result in loss or damage to the
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:
Historical Underpinnings of Tortious Liability of State
- Provide a comprehensive understanding of the State's liability in
- Trace the development of the state's tortious liability.
- To examine the concept of Sovereign Immunity and examine its present
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.
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
The following two explanation can be derived from this maxim:
- The Sovereign transcends all jurisdiction i.e., any repugnant
action cannot be attributed to the Sovereign.
- The Crown's prerogative extends to not causing harm to the
public i.e., it cannot be utilized against them.
In an 1864 case, 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, 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 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". This case was cited further in various cases 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:
- Torts committed by its servants or agents;
- Any breach of the common law duties which a person owes to his servants
or agents as their employer;
- 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 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.
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 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
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.
A distinction was made in the sovereign and non-sovereign functions during the
era of East India Company in the case a landmark case 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
In one case, 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 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
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, 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:
- 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.
- 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.
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, the supreme court gave the following actions
performed by the state which would constitute as sovereign functions:
- The creation and formulation of law
- The administration of justice within its jurisdiction, upholding the law and safeguarding the rights of its citizens
- The maintenance of order and stability
- The suppression of control within its jurisdiction
- 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, 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:
- When the police officers seized the appellant's jewellery, they were acting within the extent of their duties.
- When the police officers misplaced the jewellery, they were carrying out a sovereign function.
- 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, 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.
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 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, 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:
- 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.
- 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, 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
In another similar case, 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 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:
- The Supreme Court of India has clarified that remedies under Articles 32 and 226 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.
- 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.
- The Court has also ruled that compensation is a permitted remedy under Articles 32 and 226 and that the State is obligated to pay compensation for any violation of basic rights.
The trilogy of cases establishes the principles for awarding compensation to
individuals who have been illegally detained by the state for the violation of
The vast majority of cases in which the state has been held accountable for
violations of fundamental rights are based on Articles 20 and 21.
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
 because the relevant authority
failed to provide a valid rationale for confiscation under Section 111 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.
has even been observed by the court 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
- 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
- INDIA CONST. art. 226
- 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.