NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

TORTS-1 PROJECT

VICARIOUS LIABILITY OF STATE

SUBMITTED TO: SUBMITTED BY:

PROF. KAVITA SINGH SHREYA CHANDHOK
(2018BALLB75)

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 ACKNOWLEDGEMENT

On the completion of this project, I take the opportunity of thanking the people who
contributed in the completion of it, without whose aid, contribution and help this project
wouldn„t have seen practicability. First I extend my heartfelt gratitude to, my mentor and
teacher, Ms. Kavita whose continuous guidance and support provided me with the much-
needed impetus and gave me a better insight into the topic. I am grateful to the IT Staff for
providing all necessary facilities for carrying out this work. I thank all members of the
Library Staff for providing me the assistance anytime needed.

I also thank my friends and batch mates for providing me the much needed aid whenever
needed. Most importantly, I would like to thank my parents for providing me the much
needed force for accomplishing this project.

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 CONTENTS

 ACKNOWLEDGEMENT .................................................................................................... 2
 LIST OF CASES ................................................................................................................. 4
 LIST OF ABBREVIATIONS ................................................................................................ 5
 SYNOPSIS ........................................................................................................................ 6
OBJECTIVES OF PROJECT ................................................................................................ 6
RESEARCH METHODOLOGY ........................................................................................... 6
PRINCIPLE INVOLVED ..................................................................................................... 6
REVIEW OF LITERATURE ................................................................................................. 6
 INTRODUCTION .............................................................................................................. 8
WHAT IS VICARIOUS LIABILITY? ..................................................................................... 8
THREE CONDITIONS MUST ARISE BEFORE A PERSON CAN BE HELD LIABLE FOR A
TORT BY RATIFICATION: ................................................................................................. 8
ACT OF STATE ................................................................................................................. 9
 WHAT IS VICARIOUS LIABILITY OF A STATE?.................................................................. 9
 POSITION IN ENGLAND ................................................................................................ 11
 TORTIOUS LIABILITY OF THE STATE IN INDIA ............................................................... 11
 DIFFERENCE BETWEEN ACT OF STATE AND SOVERIGN IMMUNITY ............................ 13
ARTICLE 300 OF THE CONSTITUTION OF INDIA. .......................................................... 14
 GOVERNMENT TORT OR CONSTITUTIONAL TORT? ..................................................... 15
 CASE ANALYSIS: ............................................................................................................ 16
PENINSULAR AND ORIENTAL STEAM NAVIGATION CO. V SECRETARY OF STATE FOR
INDIA IN COUNCIL. ....................................................................................................... 16
VIDYAWATI CASE- A BROAD APPROACH...................................................................... 17
KASTURI LAL V. STATE OF U.P. ..................................................................................... 18
 CONCLUSION ................................................................................................................ 20
 BIBLIOGRAPHY ............................................................................................................. 21

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 LIST OF CASES

 PENINSULAR AND ORIENTAL STEAM NAVIGATION CO V SECRETARY OF

STATE FOR INDIA IN COUNCIL.
 STATE OF RAJASTHAN V. VIDHYAWATI AND ANOTHER.
 KASTURI LAL V. STATE OF U.P.
 SHYAM SUNDAR V. THE STATE OF RAJASTHAN
 NOBIN CHANDER DEY V.SECRETARY OF STATE
 STATE OF GUJARAT V. GOVINDBHAI JKHULBHAI
 STATE OF ASSAM V. MD NIZAMUDDIN AHMED
 NAND LAL PD JAIWAL V STATE OF BIHAR
 SARDA SINGH V STATE OF UTTAR PRADESH
 SHYAMA DEVI V NATIONAL CAPITAL TERRITORY OF DELHI
 RAMJAN V. STATE OF RAJASTHAN

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 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

V. VERSUS

Co. Company

Ltd. Limited

A.I.R All India Reporter

SC Supreme Court

U.P. Uttar Pradesh

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 SYNOPSIS

OBJECTIVES OF PROJECT

 To study the acts done in exercise of sovereign powers.

 To study the relation between sovereign immunity and article 21 of the constitution.
 To analyse the obligations imposed by law and exercise of sovereign functions.

RESEARCH METHODOLOGY

The approach of study adopted for this project is doctrinal research methodology, which is a
logical, systematic and scientific method of research that involves a thorough appraisal of
statutes, case laws, codes and other legal literature to study the agenda.

PRINCIPLE INVOLVED

The entity sought to be made liable is not the government but the State. So far as the
government is concerned, it may well say that the statutory authority is neither accountable
nor subordinate to it. Hence the government cannot be visited with the consequences flowing
from a wrong order made by a statutory authority. As far as the State is concerned, it cannot
put forward any such plea inasmuch as the statute is enacted by it by Legislature. The
appointment of the authority is also done either by the Statute itself or by such authority as
may be authorised by the Statute. The act of the statutory authority in such a case is an act
done for and on behalf of the State. Hence the state is held liable.

REVIEW OF LITERATURE

 Bangia, R.K Law of torts: Allahabad book agency, 2013. Textbook

State‟s liability for the acts or omissions of statutory authorities arises only in cases
where the statutory authority acts outside his legal authority while purporting to act
pursuant to the legal authority conferred upon him and the act or omission, which causes
or results in damage to a person, is not within the ambit of the statutory protection, if
any, contained in such enactments.

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 Ratanlal and Dhirajlal. The law of torts. Ed. GP Singh,Nagpur.

So far as the government is concerned, it may well say that the statutory authority is
neither accountable nor subordinate to it. Hence the government cannot be visited with
the consequences flowing from a wrong order made by a statutory authority.

 Ramaswamy Iyer’s – Law of torts

It is a concerted effort in organising various concepts related to law of torts. It is a

diversified commentary critically evaluating the modulation of this branch of law which
is not codified in India and largely dependent on case laws. The book puts many
concepts in a clear manner.

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 INTRODUCTION

WHAT IS VICARIOUS LIABILITY?

In tort law, vicarious liability refers to legal doctrine which imposes liability on a person for
an injury which he/she didn‟t cause, but is held liable due to a particular legal relationship
which exists between him and the wrongdoer. These relationships which lead to imputed
negligence include, for instance, the relationship between, an employer and employee, owner
of a vehicle and driver, husband and wife etc. By this phrase we mean the liability of one
person for the tort of another in which he had no part.

An act done for another by a person not assuming to act for himself, but for such other
person, through without any precedent authority, whatever, becomes the act of the principal,
if subsequently ratified by him. In that case the principal is bound by the act, whether it be to
his detriment or advantage, and whether it be founded on a tort or a contract to the same
extent as by, and with all the consequences which follow from the same act done by his
previous authority.1

Three conditions must arise before a person can be held liable for a tort by ratification:

1. It must be shown that the person ratifying the act ratified it with full knowledge of its being
tortious, or it must be shown that, in ratifying and taking the benefit of the act, he meant to
take upon himself, without inquiry, the risk of any irregularity which might have been
committed, and to adopt the transaction right or wrong.2 The act of ratification must take
place at a time, and under circumstances, when the ratifying party might himself have
lawfully done the act ratifies.3
2. Only such acts, bind a principal by subsequent ratification as were done at the time on the
principal‟s behalf.4 What is done by a person on his own account cannot be

1
Per Tindal, C.J in Wilson v. Tumman, (1843) 6 M & G 236 (242), Referred to in Keighley maxsted & co. v.
Durant, (1909) AC 240 (246, 254) : 84 LT 777 (HL).
2
PER LOCH,J., in Rani shamasundari Debi v. Dukhu Mandal, (1869) 2 Beng LR (ACJ) 227 (229); Girish
Chandra das v. Gillanders & co.,(1869) 2 Beng LR (OCJ) 140.
3
Bird v. Brown, (1850) 4 ex 786 (799). See Buron.
4
Brook v. Hook, (1871) LR 6 Ex 89 ; Keighley maxsted & co. v. Durant.(1901) AC 240, p. 260: 84 LT 777
(HL).

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 effectually adopted by another. If an act be done by a person on behalf of another ,it is in
general immaterial whether the authority be given prior or subsequent to the act.

3. An act which is illegal and void is incapable of ratification. 5A ratification of a tort by a

principal will not free the agent from his responsibility to third persons.

ACT OF STATE

The Act of State is an exception which can be raised by the State against an action for the
wrongs done by its servants. It is a great denial of justice and Rule of Law. 6 In Halsbury‟s
Laws of England, „act of state‟ is described as “a prerogative act of policy in the field of
foreign affairs performed by the Crown in the course of its relationship with another state or
its subjects. Typical acts of state are the making and performance of treaties, the annexation
of foreign territory, the seizure of land or goods in right of conquest, declaration of war and
of blockade”7

The best definition of act of state is that of Wade:8

“An act of the executive as a matter of policy performed in the course of its relations with
another state, including its relations with the subjects of that state, unless they are temporarily
within the allegiance of the Crown.”

WHAT IS VICARIOUS LIABILITY OF A STATE?

The term „administration‟, „state‟ and „government are often used synonymously. It is a
complex problem to identify the extent to which an administration will be held liable for the
torts committed by its servant and the problem is more grave in developing countries with
ever widening state activities. The liability of a state is governed by the principles inherited
from British common law and the provisions of the constitution. The whole idea is based on
three principles:

5
Wilson v. Tumman,(1843) 6 M & G 236; Lewis v. Read, (1845) 13M & W 834.
6
S.S.Srivastava, Rule ofLaw and Vicarious Liability ofGovernment, (Calcutta: Eastern Law House, 1995)
p.233.
7
Lord Hailsham (ed.)Halsbury's Laws ofEngland, 4th ed., vol.18, (London Butterworths, 1977), p.725.
8
Lord Hailsham (ed.)Halsbury's Laws ofEngland, 4th ed., vol.18, (London Butterworths, 1977), p.725.

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 1. Quifacit per alium facit per se (he who acts through another does it himself).
2. Socialisation of Compensation.
3. Respondeat superior (let the principal be liable).

What is a state?

In Indian context, the State includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities within
th e territory of India or under the control of the Government of India.9

Not All Statutory Bodies Can Be Termed as ‘State’

All the bodies, be it statutory and non-statutory, getting financial support from the
government can be considered as a „state‟ and having deep pervasive control of government.
However some entities such as NCERT cannot be considered a „state‟ as they are not
substantially financed by the government and do not fall under the government control.

In case of „vicarious liability of the state‟, some questions arise automatically, why do we
need to study the liability of the state differently? Why cannot we deal with the cases against
the state as we treat the others?

The reasons for some extra privileges to be given to the stat are:

 The state needs to perform some extra functions and duties which cannot be undertaken by
a private individual.
 The state is the „law maker‟, since it has made the law, theoretically it cannot commit a
wrongful act.
 The taxes collected from the masses are supposed to be used for public welfare. It is
illogical and unfair to take tax from one private individual and pay compensation, from
that money to another.

But with the increase of the functions of the state, it started becoming unjustified to retain the
immunity of the state against its servants. So certain old rules were abolished and new ones,
made.

9
Article 12 of the Indian Constitution.

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 POSITION IN ENGLAND

At common law, the crown could not be sued in tort either for wrong actually authorised by it
or committed by its servants, in the course of their employment.10 Moreover , no action could
lie against the head of the department or other superior officials for the acts of their
subordinates for relationship between them was not of master and servant but of fellow
servants.11the individual wrongdoer was personally liable and he could not take the defence
of orders of the crown, or state necessity.12 The immunity of the crown from liability did not
exempt the servant from liability. The result was that, whereas an ordinary master was liable
vicariously for the wrong done by his servant, the government was not liable for a tort
committed by its servant.

Many writers base the royal freedom from suit on the maxim that „ the king can do no wrong‟
and hence „ he cannot authorise a wrong‟.13 Others maintain that immunity from suit results
in non-liability in tort. However prof street14 concludes that the tortious immunity is a judge-
made rule.

However, mays and means were found to give effect to what Bracton said in the thirteen
century that „ The king is under God and law‟. Innovation of petition of right in the reign of
Edward 1 was one of the ways. It was more or less a satisfactory remedy for claims in
contract and claims of property. Of course, it did not mean that the subjects had any cause of
action against the king. Moreover, the petition of rights did not lie for torts. The procedure
also was a complicated one. Hence it seems to have fallen into disuse till its revival in
nineteenth century. However still no action could be brought in torts against the crown. This
principle was reiterated by Scott J in the Anglo-saxon petroleum company case.

TORTIOUS LIABILITY OF THE STATE IN INDIA

10
Canterbury (viscount) v. Att. Gen., (1842) 1 Ph. 306.
11
Bainbridge v. postmaster general,(1906) 1 K.B. 178; Raileigh v. Goschen, (1898) 1 ch. 73;
12
Entick v. Carrington,(1765) 19 St. Tr. 1030; wilkes v. Halifax (lords), (1769) 13 St. Tr. 1406
13
Cockburn,CJ, in Feather v Reg (1865) 6 B&S 257.
14
H street, government liability.p 2.

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In ancient India, under the Hindu jurisprudence, it was an undisputed principle that no one
is exempt from the operation of law.15 The wrongdoer, may he be a king, relative of a
king, a judge or an ordinary citizen, was amenable to ordinary court and liable to protect
the person and property of the citizens. There was undoubted supremacy of the rule of law
which was binding on the rulers and the ruled alike. The status of the ancient Hindu king
was conceived as a bundle more of duties than of rights. 16the king in vedic times had not
the overwhelming might and personality that he acquired in later literature.17 From Manu
Samriti onwards, the king is deemed to be a god, Vishnu himself, in human form. Yet in
early law, the concept of the divine personality of the king seems to be entirely absent.
The important functions of the king were concerned with protection of people, punishment
of crimes and the maintenance of dharma or social order. The king‟s courts were
motivated to pass a deterrent punishment to as to cause a deterrent impact in the society
and generally vicarious tortious liability was unknown to Hindu jurisprudence. Manu and
yajnavalkya refer to the practice of personal liability of officers and village headmen to
compensate the victim of any theft which occurred due to their negligence
The constitution, under article 300, provides that the government of India and a
government of a state may sue or be sued in relation to their respective affairs in the like
cases as the Union of India and the corresponding province of or Indian state might sue or
be sued if the constitution had not been passed.18 The law on this matter is thus under the
above article subject to any law that may be made by parliament or a state legislature by
virtue of powers conferred by the constitution. There being no such statutory law, the law
which prevailed before 26 January 1950 continues. The law before the above date was
regulated by the provisions of the government of India acts, beginning from the Act of
1858.19 These acts made the secretary of state for India in council and after 1 st April 1937,
the government of India, and of the provinces of British India liable in the circumstances
in which the east India company could have been sued before 1958.

15
Brown, LN and garner ,IE, French administrative law
16
KP jayaswal, A treatise on basic Hindu law
17
Dr VC sarkar , epochs in Hindu legal history.
18
Kishangarh v state of Rajasthan AIR 1960 raj 49.
19
Section 32 of the act of 1919; s 65 of Act 1858; s 176 of Act of 1935.

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 DIFFERENCE BETWEEN ACT OF STATE AND SOVERIGN
IMMUNITY

The doctrine or the defence of the „act of state‟ is not the same as sovereign immunity. The
former flows from the nature of power exercised by the state for which no action lies in the
civil court whereas the latter was developed on the divine right of kings. Sovereignty and acts
of state are thus two different concepts. The former vests in a person or body which is
independent and supreme both externally and internally whereas, the latter may be an act
done by a delegate of soverign within the limits of power vested in him which cannot be
questioned in a municipal court. The nature of power, which the east India company enjoyed,
was by delegation of the „act of state‟. An exercise of political power by the state or its
delegates does not furnish any cause of action for filing a suit for damages or compensation
against the state for negligence of its officers. The reason being that if there is a War between
two countries or an outbreak of hostilities between two independent states in course of which
a citizen suffers damage, he cannot sue for recovery of the loss in local courts as the
jurisdiction to entertain such a suit would be barred as the loss was caused when the state was
carrying on its activities which are politically and even jurisprudentially known as „acts of
state.‟ However, that defence is not available when the state or its officers act negligently in
discharge of their statutory duties.20

Defence of sovereign immunity is limited only to primarily and inalienable functions of

constitutional government. suit filed by any person foe negligence of officer of state in
discharge of statutory duty under a law not referable to primary state functions cannot be
dismissed on the ground of sovereign immunity , since the demarcating line between the
sovereign and the non- sovereign functions has disappeared. Therefore, barring functions
such as administration of justice, maintenance of law and order and repression of criminals
which are among the primary and inalienable functions of a constitutional government, the
state cannot claim any immunity.21

The primary function like maintenance of law and order or repression of crime, violation of
which may not be suable in torts , unless it trenches into and encroaches on the fundamental
rights of life and liberty guaranteed by the constitution. Thus, that the suit for damages for

20
N Nagendra Rao & Co v. State of Andhra Pradesh AIR 1994 SC 2663, para 18.
21
Ibid, para 24.

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negligence of officers of state in discharging statutory duty is maintainable is also supported
by article 300 of the constitution.22

ARTICLE 300 OF THE CONSTITUTION OF INDIA.

The law in India with respect to the liability of the state for tortious acts of its servants has
become entangled with the nature and character of the role of the East India company prior to
1858. The course of development of the law on this subject can be traced through article 300
of the Indian constitution.

Clause (1) of the article 300 of the constitution, “The Governor of India may sue or be sued
by the name of the Union 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.”23

Even though more than 50 years have elapsed since the commencement of the constitution,
no law has so far been made by the parliament as contemplated by article 300,
notwithstanding the fact that the legal position emerging from the article has given rise to a
good amount of confusion. Even the judgements of the supreme court have not been uniform
and have helped to remove the confusion on the subject, as would be evident from what is
stated hereinafter.

RESULTANT POSITION

Thus, article 300 of the constitution practically takes us back to the act of 1858, which, in its
turn, leads us to a consideration of the nature and extent of the liability of the East India
Company. A consideration of the pre- constitution cases begins with judgement of the
supreme court of Calcutta.

22
Ibid, para 27.
23
Clause (1) artice 300 of the Indian constitution.

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 GOVERNMENT TORT OR CONSTITUTIONAL TORT?

From the developments over the liability of the state, the constitutional tort is emerged. It is
humbly submitted that the expression „government tort‟ will be more appropriate than
„constitutional tort‟. Where state government or its instrumentality violate the rule of law, the
victims right to receive damages has been recognised and such a right emerging out of
several judicial decisions is now established as a new tort referred to as „government tort‟,
which emphatically makes the government liable for its tort. The state is answerable, and is
supposed to be responsive and responsible to the rule of law and pay for its violation either
by itself or by its employees or instrumentalities.

In State of Gujarat v Govindbhai jakhulbhai, the vicarious liability of state was questioned.
The civil court held the state was vicariously liable for wrongful use of firearms by a
constable and causing injuries to the plaintiff , and decreed compensation of Rs. 1,98,000 at
six per cent interest per annum from the date of the suit till payment. The court observed,
„any police authority, be it custodial or otherwise, which results in death of or injury to a
person is per se violation of fundamental rights guaranteed by art 21 of the constitution. The
defence of sovereign immunity would in such cases be align to the concept of guarantee of
the fundamental right of life and personal liability24

In State of Assam v Md Nizamuddin Ahmed,25 where seed was seized from a merchant in
1987 and because of lack of storage facilities and the seed got damaged, the merchant asked
for the damages. The court distinguished this case from Kasturilala and Vidyawati cases and
held that the state and the police were not liable for damage to the seized seeds. The court
supported sovereign immunity for the legal act like legal seizure under the law. Whereas in in
Nand Lal Pd Jaiwal V State of bihar26,a single judge if the Patna high court ordered the state
to pay Rs.1 lakh as damages for the loss of a revolver „illegally seized‟ caused by the
negligence of the police. There was no reference to any precedents in the judgement while
holding the state liable. In Sarda Singh v State of Uttar Pradesh27 the court directed
compensation of Rs. 5000 to be paid to the person whose house had been illegally raided and
his privacy invaded. The court deviated from general practice by not making the state

24
AIR 1999 Guj 316.
25
AIR 1999 Gau 62.
26
(1999) 1 BLIR 526
27
1999 AII LJ 606

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vicariously liable. It specifically directed that particular police officer to pay the
compensation.

In Shyama Devi v National capital territory of delhi28 the state was held liable to pay Rs.3.5
lakhs, following the death of a policeman ina rocket explosion. A live rocket was seized and
kept outside the police station surrounded by sandbags. Instead of following suggestions of
the army headquarters in dealing with process of defusing the rocket, they entrusted an SI of
the bomb disposal squad to defuse and dismantle the rocket. The five pieces of the rocket
were sealed in a plastic bag and kept as a case property. When it was being taken out for
being produced in the court the rocket exploded and one Omprakash succumbed to his
injuries. In a writ petition filed by the wife and two children of the victim, the court found the
respondents grossly negligence and remiss. The state was found vicariously liable.

CASE ANALYSIS:

PENINSULAR AND ORIENTAL STEAM NAVIGATION CO. V SECRETARY OF

STATE FOR INDIA IN COUNCIL.29

The plaintiff sued for damages for injury to his horse caused by the negligence of some of the
servants employed in the government‟s dockyard in the river Hooghly. In allowing the claim,
Sir Barnes Peacock held that the East India Company could have been sued for the torts of its
servants committed in the course of transactions which is, as a trading company engaged in.
He mentioned as instances of such transactions, the maintenance of a dockyard, carrying
persons or goods on a railway, or conveying messages by telegraph. In such cases, the
government would be liable. The principle was further elaborated by the supreme court in
State of Rajasthan v Vidhyawati.30In a Nagpur case, the government was held liable for the
loss caused by the improper interference of a forest range officer with the removal of timber
by the plaintiff who had purchased a forest coupe. An exception to this rule may be made by
statute. For instance, the Indian ports act 1908, s 18 saves the government from responsibility

28
AIR 1999 Del 264
29
(1861) 5 Bom HCR 1; cf the similar distinction drawn between the corporate and governmental functions of
municipalities in the USA; Dillon, municipal corpn, fifth edn, 1911, para 1643, 44 Har LR 302, P 303.
30
State of Rajasthan v Vidhyawati, AIR 1962 SC 933, ( 1962) Supp 2 SCR 989.

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for any act or default of any conservator, port officer or harbour master of any port or or of a
pilot, not done under its express order or sanction.31

The doctrine of immunity for acts done in the exercise of „soverign function‟s, enunciated in
the P & case, was applied by the Calcutta high court in Nobin Chander Dey v. Secretary of
State.32 In that case, the plaintiff contended that the government had made a contract with
him or the issue of a license or the sale of ganja and had committed breach of contract. The
high court held as under:

i. On the evidence, no breach of contract had been proved.

ii. Even if there was a breach of contract, the act was done in exercise of sovereign
power and, therefore it was not actionable. The high court expressly followed the P &
O ruling.

This aspect of the liability of the state in India for the tortious acts of its servants has been
considered by the Supreme court in the following judgements.

VIDYAWATI CASE- A BROAD APPROACH

In State of Rajasthan v. Vidhyawati & another33 Vidhyawati‟s husband had been knocked
down by a government jeep car which was rashly and negligently driven by an employee of
the state of Rajasthan. The said car was rashly and negligently driven by an employee of the
state of Rajasthan. The said car was one meant for the use of the collector and was at the
relevant time being taken from the repair shop to the collector‟s residence. The claim for
damages was upheld by the courts and whilst dismissing the appeal preferred by the state of
Rajasthan, the supreme court observed that the liability of the state for damages in respect of
a tortious act committed by its servants within the scope of his employment and functioning
as such was the same as that of any other employer. It was observed by the court that such a
notion was inconsistent with the republican form of government in our own country. The
conclusions and observations in Vidhyawati’s case came to be distinguished and restricted by
the later judgement in Kasturi Lal’s case.

31
Halsbury laws of England, vol XXX. P 850.
32
(1873) ILR 1 CAL. 1.
33
AIR 1962 SC 933, ( 1962) Supp 2 SCR 989.

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On appeal. The supreme court confirmed the decision of the Rajasthan high court and
endorsed the view expressed in it. In State of Rajasthan v. Vidhyawati & another the
observations made by the supreme court may also be noted, “ In this connection, it has to be
remembered that under the constitution, we have established a welfare state, whose functions
are not confined only to maintain law and order, but extend to engaging in all activities
including industry, public transport, state trading to name only a few of them. In so far as the
state activities have such wide ramification involving not only the use of sovereign powers
but also its powers as employers in so many public sectors, it is too much to claim that the
state should be immune from the consequences of tortious acts of its employees committed in
the course of their employment as such.‟‟

In Shyam Sundar v. the State of Rajasthan34, the SC held that the driver of a truck engaged in
a famine relief work is negligent, The state will be liable for the same, as famine relief work
is not a soverign function of the state. It is a work which can be undertaken by private
individuals.

KASTURI LAL V. STATE OF U.P.35

“If the tortious act is committed by a public servant and it gives rise to a claim for damages,
the question to ask is: was the tortious act committed by the public servant in discharge of
statutory functions which are referable to, and ultimately based on, the delegation of the
sovereign powers of the state of such public servant? If the action is in affirmative , the action
for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious
act has been committed by a public servant in discharge of duties assigned to him, not by
virtue of delegation of any sovereign power, an action for damages would lie. The act of the
public servant committed by him during the course of his employment is, in this category of
cases, an act of a servant who might have employed by a private individual for the same
purpose.”

In Kasturi Lal’s case it was observed that when in State of Rajasthan v. Vidhyawati &
another36, The government employee was driving the jeep from the workshop to the
collector‟s residence, he was employed on a task or an undertaking which cannot be said to

34
AIR 1964 SC 890.
35
AIR 1965 S.C. 1039, At 1046.
36
AIR 1962 SC 933, ( 1962) Supp 2 SCR 989.

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be referable to, or ultimately based on, the delegation of sovereign or governmental powers of
the state. In the course of its judgements the supreme court observed that the power to arrest a
person, to search him, and to seize property found with him and the powers conferred on the
specified officers by a statute are powers which can be properly characterized as sovereign
powers. If the claim was based on an act committed by an employee of the state admittedly
during the course of his employment, and if the employment was of a category which can
claim the special characteristic of sovereign power, then, it was held that the claim could not
be sustained. The decision in Kasturi Lal’s case has not met with a universal approval. In
fact, a distinguished author has submitted that the judgement is clearly wrong on number of
counts.37 A plea has also made been made for an enactment to regulate and control the claim
of the state for immunity.

Although the decision of the supreme court in Kasturi lal’s case still holds good, for
practical purposes its force has been considerably reduced by a number of decisions of the
supreme court. Without expressly referring to Kasturi lal or nullifying this case, a
fluctuation from this decision has been made. Under the circumstances in which the state
would have been exempted from liability if Kasturi Lal had been followed, the state has
been held liable. The state has been made liable in respect of loss or damage either to
property or to a person.
Thus, present day law regarding state liability for the for the tortious acts of its servants is
out-dated, and an instance of historical anachronism. The theory of non-liability of the
state for sovereign functions is only another dimension of theory of „ act of state‟.
However, if the doctrine of act of state is justifiable only when committed in a foreign
national, it is extremely harsh to apply such a concept to the relationship of the state with
its own subjects.

37
HM Seevai, Constitutional law of India third edn, pp 1795-96

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 CONCLUSION

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 BIBLIOGRAPHY

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