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Tortious Liability: Sovereign And Non Sovereign Functions of State

State is not a living entity but a legal entity which cannot function without human agency. It is therefore, that the state has to act through its servants. The concepts of Tortious liability of the state refers to situation when the state can be held vicariously liable for the wrongs committed by its servants. There are numbers of constitutional provisions relating to the tortious liability of the state. Under article 294 (b), the liability of the union government or a state may arise out of any contract or otherwise.

The word otherwise indicates that such liability may arise in respect of tortious acts as well the extent of the said liability is defined in article 300 (l) which declares that the government of India or of a state may sue or may be sued in relation to their respective affairs in the like cases as the Dominion of India and corresponding provinces or Indian states might have sued or been sued.

If the constitution had not been enacted, the liability of the Dominion and provinces of India before the commencement of the constituted was described in sec. 176 of the government of India act, 1935, referring back to see. 32 of the government of India act, 1915 which is turn refers to sec. 65 of the act of 1858, sec. 65 of the act of 1858 provided that on the assumption of the government of India by the British Crown, the secretary of state for India in council would be liable to the same extent as the liability of the government whether prior to the constitution or under the constitution is the same as that of east India before 1858.

The leading case arising under sec. 65 of the government of India 1858 is case: P & 0 steam Navigation co. v. Secretary of state (1861) {1} In this case the servant of the plaintiff company was traveling in a horse-driven carriage belonging to the company. While the carriage was passing near the government dockyard certain workmen employed by the government negligently dropped an iron bar on the road. The noise so created scared the horse of the carriage and injuries were sustained by the horse and the servant of the company. The plaintiff company filed a suit for the damage caused by the negligence of the government servants. Peacock CJ. (Of the supreme court of Calcutta) held that the action against the defendant was maintainable and the court classified the acts of secretary of state into two categories:

  1. Sovereign
  2. Non-sovereign.

The secretary was liable for the acts but enjoyed immunity from former acts.

Case Secretary of state v. Hari Bhanji (1882). In this case a suit was filed to recover the excess excise duty collected by the state on a consignment of salt. Rejecting the pleas of immunity, the Madras High Courts held that no immunity attaches to actions done under the colour of municipal laws as the immunity of east India Company extended only to acts of state.

Post Constitutional view: Case State of Rajasthan v. Vidyawati (1962). A jeep was owned and maintained by the state of Rajasthan for official use of collector of a district. Once the driver of the jeep was taking it back from the workshop after repairs by (his) rash and negligent act of driver of the jeep a pedestrian was knocked down and fatally injured. He died. His widow sued the state for damages. The state claim immunity on the ground that in similar circumstances the east India Company would not have been liable, as the jeep was maintained in the exercise of sovereign functions and not as a part of commercial activity of the state was vicariously liable for the rash and negligent act of the driver and held that the doctrine of sovereign immunity founded on English law had no validity in India.

Case Kasturil Ial v. State of UP (1965). A certain quantity of gold and silver was seized by police from Raila Ram on the suspicion that it was stolen property. It was kept in government Malkhana which was in custody of a Head Constable. The property was misappropriated by the head constable who fled to Pakistan. Raila Ram was prosecuted but acquitted of charge. A suit for damaged was filed by Raila Ram against the state for the loss caused to him by the negligence of police authorities following the principle laid down in steam navigation co. case, the supreme court ruled that the state was not liable as police officers were exercising sovereign functions.

Case Basavva patil v. State of Mysore (1977). In this case a theft was committed and some ornaments were stolen from the house of the appellant. Five persons were arrested. The police authorities recovered the ornaments in the course of investigation. The magistrate asked the police to keep them in police custody before the disposal of the case. The application for return of goods under Sec. 517 Cr.P.C, 1898 was rejected by the magistrate on the ground that the goods had not reached the custody of the magistrate. The said order was confirmed by the High Court.

On appeal, the Supreme Court reversed the decision and ordered the state to pay cash equivalent of the property to the appellant.

Case Satyawati v. Union of India (1967) Delhi. In this case the Delhi High Court held that the carrying of a hockey team in a military truck to the Air force station to play a match is not a sovereign function.

Case Union of India v. Sugrabai (1969) Bombay. In this case the Bombay High Court held that the transporting of military equipments from the workshop of the artillery school is not a sovereign function.

Case Union of India v. Harbans Singh (1959) Punjab. In this case the Punjab High Court came to the conclusion that the state is not liable for compensation to a person who is run over by a military truck carrying meals for military personnel on a duty in the forward areas as it is a sovereign function.

Case Union of India v. Smt. Jasso (Punjab) 1962. In this case it was held that the carrying of coal to the army headquarters is not a sovereign’s function.

Case Union of India v. Savita Sharma (1979) J & K. In this case a military truck was going to railway station to bring military personnel to the unit headquarters. It dashed against the vehicle and injured its occupants. Ruling that the drivers of the truck was not engaged in performing any sovereign function, the court held that the transportation of military personal from one place to another could be performed by any private person. The state was held liable.

Case Mohd Shafi Suleman Qazi v. Dr. Vilas Dhondu Kavishwar. In this case the Bombay High Court held that the ruining of hospital is not a sovereign function. The state was held liable for acts of negligence committed by hospital employees in courses of their employment in state run hospitals.

Writ and damages for governmental torts state liability for un-constituently acts: Recent judicial trend is in favour of holding the state liable in respect of tortious acts committed by its servants according to the traditional classification, arrested and detention can ordinarily be characterized as sovereign functions. There are decision of the Supreme Court which seems to indicate that where there is gross violation of the right to life and personnel liberty enshrined in articles 21 of the constitution by the government servant, the court issues write quash arrested or detention and at the same time holds the state liability to pay compensation to the victims.

Case Khatri v. State of Bihar(1981). In this case it was alleged that police had blinded certain prisoners and as such the state was held liable to pay compensation to them.

References:

  1. Dr. J.J.R. UPADHAYA, Administrative Law, (Central Law Agency, Allahabad, 10th edn. , 2016)
  2. S.P Sathe, Administrative Law, (LexisNexis, 14th Floor, New Delhi-110001, 7th edn. 2004)
  3. M.C. Jain Kagzi, The Indian Administrative Law, (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 7th edn., 2014)
  4. Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law Agency, Haryana, 8th ed., 2011)
  5. Dr. Kailash Rai, Legal Ethics Accountability For Lawyer And Bench Bar Relations, (Central Law Publications, Allahabad, 11th edn., 2011)

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