Parliament has not given to India, the statutory provisions like the Crown
Proceedings Act, 1947 of England whereby the Crown is statutorily made liable
for the torts committed by its servants, just like private individual.
But there is Article 300 of the Constitution which clearly lays down that the
State (Union or State governments) is liable for the torts committed by its
R.K.Bangia the author of Law of torts commented in his book, as under:
Article 300, thus, provides that the Union of India and the states are juristic
persons for the purpose of suit or proceedings. Although the Union of India and
the States can sue and be sued, but the circumstances under which that can be
done have not been mentioned (in the Constitution).
It is quite unfair to expect the Constitution makers to speculate on those
circumstances. Because that will probably burden them to write the lengthiest
article of the Constitution.
What is significant to be noted is that Article 300 didn't create any exceptions
in favour of Sovereign functions of the state as narrated in a catena of SC
judgments starting from P&O Steam Navigation Company's case.
That is enough for the judges in several cases like Kasturi lal's case to rule
in favour of the victims of the torts of public servants and hold the State
In Satyawati Devi's case
, the plea taken by Union of India was that
taking sportsmen of Air force in Air Force vehicle is sovereign function of the
state and therefore if such vehicle caused death of plaintiffs, then the State
is not vicariously liable.
Delhi high court rejected the plea and gave judgment against State...and
judgment was good. But the following reasoning adopted by the court appears to
be based on archaic legal principles of British era:
"Since the act of carrying sportsmen to play matches could also be performed by
private individual, it was not sovereign function."
After the Constitution gave the Article 300, there is no necessity for the
courts to adjudicate this matter on the basis of sovereign non-sovereign
Also, this reasoning is fallacious, because what is to be judged about is the
act which is alleged to be a tort. The act killed a person. Therefore it is a
tort. If the Army personnel killed someone suspecting to be terrorist, it may
called a sovereign function.
But this is not certainly a sovereign function.
While deciding the vicarious liability of state, the legal principle should be
whether it is Act of State or not and it is authorised by statute and authority
Sometimes, the alleged tortfeasor may have acted in excess of authority given to
him. In such case, State is liable irrespective of whether it is sovereign
function or not. For example Army trial concluded that killing someone by Army
personnel suspecting to be terrorist is guided by whims and fancies of such
personnel. Then state is vicariously liable.
But where the interests of public welfare outweighs the interests of individual
welfare, and the public servant is found to be carrying out his statutory
duties, the State cannot be held vicariously liable. As in the case of Land
acquisition made under Land acquisition act.
It is assumed here that where certain statute authorises a public servant to
commit some act, the compensation for loss arising out of consequences of such
act would also have been contemplated and provided by such statute.
Let these principles be summarised as under:
- Whenever a tort is allegedly committed by public servant, ascertain
whether there exists a legal relationship of master and servant between the
government and alleged tortfeasor.
- If it exists, then judge whether the act is tortious or not,
independently, keeping the considerations relating to sovereign immunity
- If it is a tort, and any ordinary person is vicariously liable for such
tort, then state also is vicariously liable for it if it is not an Act of
State or if it is not authorized by any statutory authority under legal
- If it is Act of State, consider whether the alleged tortfeasor has
exceeded his limits in discharging his statutory functions/duties. If he
exceeded the limits, the state shall be made vicariously liable.
- If it is Act of the State, consider whether the public good to be served
through the alleged act outweighs the individual interests of the plaintiff
alleging tort against the State. If it outweighs, then subject to the fact
that genuine interests of the plaintiff are not hurt, the State can be
relieved of it's liability.
A alleges that the vacant place in front of his house is acquired by
government to build a Community Hall for the residents of A's Colony. A is
alleging that Community Hall will create nuisance to his family. A has
nothing to lose from it or little to lose from it in comparison to the
benefits received by residents of his colony. Hence government is not
B alleges that in the land acquired by government to build community hall,
he lost his 100 yards for which he submitted proof, then government is
vicariously liable and it should compensate for B's loss in the manner
directed by Court.
- Sometimes statute allows some act which genuinely turns out to be a tort
for plaintiff and statute did not provide compensation to the victims of
such tort. Then, the propriety of such statute can be questioned and State
shall be held liable for improper making of a law.
- If the public servant is capable of paying by virtue of his
position and financial status, the court shall direct him to bear a portion
of compensation amount (that the court deems fit) payable by state to
But in no way state shall be relieved of it's liability, on the ground of
sovereign immunity, because modern state doesn't have the stature of a King. In
democracy people are Kings and law is the ruler. Going by this logic, if any
public servant commits a tort against people it amounts to Sedition.
The only ground providing relief to the state for the torts alleged against it's
servants, is that the action was required to be compulsorily taken in view of
public interest under compelling circumstances.
Even under such circumstances, if the loss suffered by victims is patent,
irreparable and excessive, the state shall make all efforts to compensate to the
extent possible for it, keeping its economic considerations in view.
But to take the plea of sovereign immunity to escape obligation towards genuine
victims, shall be viewed as crafty use of government pleaders to further
victimize the sufferers.
Government should behave like caretaker of citizens not like a businessman using
loopholes in law to escape liability arising out of torts committed by its
Irrespective of merits and demerits of the case, and availability of cogent
defence, the state shall be conscious that even otherwise, it has a public duty
to protect its subjects like Ayodhya King Lord Rama, if it wants to use the
defence of sovereign immunity.
Who is the victim/plaintiff claiming compensation from the state? He is King's
subject. While claiming exemption from using the defence of sovereign immunity,
why the state forgets that the king (who purportedly can do no wrong), is not
treating victims in these cases as his subjects and why not thinking that
winning cases against it's own subjects to further victimize them is unbecoming
of the stature and majesty of a king.
Why modern state is shunning it's responsibility towards its citizens in a
If the judiciary feels that modern state enjoys sovereign immunity because it
has stature of king, then it should remind such King that the victims are king's
subjects and the King owes a duty towards them (irrespective of the merits of
the case) to protect them like Lord Rama.
It is true KING CAN DO NO WRONG, but it is also true, HE RESPONDS WHEN HIS
SUBJECTS ARE IN DISTRESS.
Award Winning Article Is Written By: Mr.Anjuru Chandra Sekhar
- Assistant Professor in Aurora Legal Sciences Academy, Hyderabad.
Authentication No: SP125408558530-11-0921