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Statutory Authority As Defence

Statutory authority is the type of authority that has its roots in the legislation part of the government. This would generally mean that in case of common law there would be a big problem as the system is heavily based upon the precedential sources of law as opposed to civil-law. Hence it is no surprise that when something of the nature of statutory authority was introduced in the common law system it met a lot of oppositions and resistance from the judiciary and the government as a whole.

A problem that those courts keep facing, among numerous others, is the credibility and the objective of the legislation. For example, when the legislature gives the green signal to an act which is otherwise against the interest of public, it raises certain questions. Hence, we can safely assume that the purpose of the legislative remained ambiguous at best.

The protection of the king and certain higher authorities from civil and legal suits due to their stature has always been a sensitive topic. Though very little light has been shed towards this cause in any kind of legal documents, it doesn't take a genius to guess the fact that this entire concept of the immunity of king and certain others in regards to some suits is based on historical cases and outdated policies. Though English and American courts have tried to prevent this by modifying ways, the real issue has never been addressed.

Various incidents and cases throughout the history of jurisprudence have left question marks on the rendering of statutory authority as something which disregards the existing moral concepts of equity, good conscience and the similar. Nonetheless, there have been various arguments and theories regarding the nature of this problem as a whole. Some have argued that the crisis is more of an administrative nature rather than a tort one.

Others have also delved in similar ways of categorizing the issues. However, this only complicates the issue rather than solve it. Hence the best way to go about it is to analyse its entire history, progress and how it came to be where it is today. So, let us take a dive into it.

The immunity from tort liability for activities carried out under statutory authority arose from the confusion, or fusion of several historical factors. The concept of culpability has long been associated with tort liability. Tort law arose from the early stages of criminal law. Allowing civil action had the goal of preventing the aggrieved party from taking matters into his own hands and seeking vengeance. [1]The award of a monetary settlement helped to calm the plaintiff's agitated emotions. Arguments from attorneys seeking damages for their clients replaced cries for vengeance.

But there could be no liability without any fault. Recovery was thought to necessitate the existence of some culpable act. If someone was simply following the law's dictates, it was practically difficult to say they were liable when damage occurred. He couldn't be a bad guy because he wasn't breaking any laws. On the contrary, if he does nothing, he may be held criminally liable. As a result, the courts were unable to find fault where legislative authority existed for an act that violated private rights. One of the reasons for the immune system's expansion was because of this.

The common law has long held that the King could do no wrong.[2] In feudal society, there existed no court in which a suit can be bought against the king, so this was purely historical coincidence. The King did not become identified with the state until the manorial system collapsed. Rather than a non-existent Sovereign, the federal and state governments were granted immunity.

In the absence of negligence, no liability would be imposed if the defendant was performing a "duty imposed on him by the legislature, which he is bound to execute". The courts were hesitant to treat the agents chosen to carry out certain acts as mere private individuals when Parliament authorised them, even the courts were hesitant to treat the agents chosen to carry out certain acts as mere private individuals when Parliament authorised them. To do so would be to jeopardise Parliament's effectiveness. As a result, individual rights were sacrificed in order to preserve democracy.

Development Of Statutory Authority As A Defence

The doctrine exempts the government from tort liability for the actions of its agents.

It came about for two reasons:
as a sovereign attribute, authority could not be sued, without its permission, in its own court and the crown's treasury is affected by compensation awards. Sovereign immunity, on the surface, justifies the state's or its representative's wrongdoings on the basis of public policy.

In the case of Vaughan vs Taff Vale Rail Company, the rule was developed into its recent form. They were found not liable because they did not do anything that was illegal under the law and exercised reasonable caution and care and was not done negligently[3].

In the case of Hammersmith Rail Co. Vs. Brand, since the damage was primarily due to the use of tracks rather than construction the company was not held liable. According to the lords, the damage was caused by the use of the tracks after the construction was finished, which happened without their knowledge. As a result, compensation is not available. They also pointed out that the interpretation of "by construction thereof" should not be taken in a farfetched way[4]. Then came a case where negligence by the defendant was found to be a reason of liability.

In Smith v. London and South Western Railway Co because the railway authority was careless in leaving grass hedges near the railway line, the plaintiff was entitled to compensation.[5] Here, it was established again that negligence on part of defendant would lead to liability.

In Metropolitan Asylum District v. Hil, the court distinguished between absolute authority and conditional. In absolute authority the act is justified totally and is not actionable whereas in conditional authority it is subject to conditions such conditions can be implied or expressed. These conditions would depend on the facts of the case.[6]

Developments In India
The State is granted sovereign immunity under Article 300. Sovereign functions include the defence of the country, the maintenance of armed forces, and the maintenance of peace in the retention of territory. These functions fall within the ambit of State only functions. The state serves a variety of purposes, but not all of them are sovereign in nature. Public functions such as law enforcement, can be considered sovereign functions, in addition to legislative and administrative functions.

There are no rules for deciding whether or not a function is sovereign. "Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India" was one of the first cases to recognise the distinction between sovereign and non-sovereign functions when it came to the state's liability arising from a tortious act committed by public servants.[7]

This case held that in the excise of sovereign functions the state and company cannot be held liable as opposed to when it is outside its ambit. This case also arose out of "section 65 of govt of India act 1858", which made the secretary and company equally liable.

In "Kasturilal Ralia Ram Jain v. State of UP"[8], The plaintiff was detained on suspicion of having stolen property, and the Vidhyawati decision was scrutinised. The court held that, even though the officers were negligent in their duties, the job in question does fall into the category in which a particular feature of sovereignty can be claimed, and therefore the claim cannot be maintained.

The State of Orissa was found liable in "Nilabati Behera v. State of Orissa" to compensate the petitioner for damages incurred as a result of an infringement of fundamental rights. Even, though it may be available as a defence in a tort action, The Supreme Court has found that such public legal remedies exist under strict liability for infringement of basic rights that are not subject to the principle of sovereign immunity. [9]In such cases, filing a petition under Article 32 or Article 226 of the Constitution is the best course of action.

The Supreme Court held in "N. Nagendra Rao & Co. v State of Andhra Pradesh" that when a citizen suffers harm as a result of a public servant's negligence. The state has a subrogation responsibility to compensate him, and sovereign immunity does not exempt it from liability.[10]

The court acknowledged that the traditional notion of sovereignty has evolved into modern times and that the distinction between sovereign and non-sovereignty functions no longer exists. Acts permitted by law must be carried out with care not to exceed the authority permitted by law. Otherwise, the person may be held liable. The law provides for compensation for damage caused by such acts.

Though time has definitely affected the concept of statutory authority, it has been for the better, because we can see how through time the concept and the framework of statutory authority as a defence has evolved and improved. The inclusion of something like conditional authority ensures that there is a limit to the authority of the state because in case of conditional authority a person can bring about action against the state if the state exceeds its authority in regards to the condition mentioned in the contract of the act done. Another important thing that was brought, is a system for checks and measures in order to stop the state from unreasonably exceeding its authority.

However, there are some points that need to be considered in my opinion. Firstly, we should keep in mind that the law is also in the hands of the state and that they can take advantage of their position. And also, the government should also try to not force people into submission in the name of statutory authority like building roads or railways through someone's compound just because they have the authority to do so.

  • Martin Linden A, 'Legislative Authority As A Defense To Tort Liability' (, 2021 accessed 14 December 2021.
  • Vaughan vs Taff Vale Rail Company [1858] 157 667 ER.
  • Hammersmith Rail Co. Vs. Brand [1869] 171 LR 4 HL.
  • Smith v. London and South Western Railway Co [1869-70] 98 LR 5 CP.
  • Metropolitan Asylum District v. Hil [1881] 536 All ER.
  • Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India [1861] 5 Bom. H.C.R.
  • Kasturilal Ralia Ram Jain v. State of UP [1965] AIR 1039 (1) 375 SCR.
  • Nilabati Behera v. State of Orissa [1993] AIR 1960, (2) 581 SCR.
  • N. Nagendra Rao & Co. v State of Andhra Pradesh [1994] AIR 2663, (6) 205SCC.
  1. Allen Martin Linden, 'Legislative Authority As A Defense To Tort Liability' (, 2021) accessed 14 December 2021.
  2. Ibid.
  3. Vaughan vs Taff Vale Rail Company [1858] 157 667 ER.
  4. Hammersmith Rail Co. Vs. Brand [1869] 171 LR 4 HL.
  5. Smith v. London and South Western Railway Co [1869-70] 98 LR 5 CP.
  6. Metropolitan Asylum District v. Hil [1881] 536 All ER.
  7. Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India [1861] 5 Bom. H.C.R.
  8. Kasturilal Ralia Ram Jain v. State of UP [1965] AIR 1039 (1) 375 SCR.
  9. Nilabati Behera v. State of Orissa [1993] AIR 1960, (2) 581 SCR.
  10. N. Nagendra Rao & Co. v State of Andhra Pradesh [1994] AIR 2663, (6) 205SCC.

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