Vicarious Liability of the State

It is based on the legal maxim: “Rex Non-Potest Peccare”, which means “The King can do no Wrong”.

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. 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. The individual wrongdoer was personally liable and he could not take the defence of orders of the Crown, or State necessity. The immunity of the Crown from the 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 servants.

With the increase in the functions of the State, the Crown became one of the largest employers of labour in the country. Under these circumstances, the rule of immunity for the crown became highly incompatible with the demands of justice. To overcome the shortcomings of the prevailing law and to ensure justice, various devices were found out. The Crown started the practice of defending action brought against its servants in respect of torts committed by them in the course of their employment.

The position has been entirely changed after the passing of the Crown Proceeding Act, 1947. Now the Crown is liable for a tort committed by its servants, just like a private individual.

Section 2 (1) of the Act provides:

1. Subject to the provisions of this Act, the crown shall be subject to all those liabilities in tort to which, if it were person of full age and capacity, it would be subject:
2. In respect of torts committed by its servants or agents;
3. In respect of any breach of those duties which a person owes to his servants or agents at Common Law by reason of being their employer; and
4. In respect of any breach of the duties attaching at Common law to the ownership, occupation, possession or control of property:

Provided that no proceeding shall lie against the Crown by virtue of paragraph (a) of this sub-section in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provision of this Act, have given rise to a cause of action in tort against that servant or agent or his state. 

Position in India

The State (Union or State Government) can be held vicariously liable for the tortious acts of its servants committed in the course of their employment, subject to a historical distinction.

The legal basis for suing the State in India is found in Article 300 of the Constitution of India, which states:

1. The Government of India or the Government of a State may sue or be sued in relation to their respective affairs.
2. The liability of the Union or a State is to be the same as that of the Dominion of India and the corresponding Provinces/Indian States immediately before the commencement of the Constitution.

The Doctrine of Sovereign Immunity and its Limitations:

1. Historical Benchmark: Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861):

This landmark case established the initial test for State liability in India:

a. Sovereign Functions: If the act causing the injury was committed in the exercise of sovereign power (acts that cannot be delegated to a private person, e.g., maintenance of the army, police, administration of justice, making war/peace), the State would not be liable.

b. Non-Sovereign (or Commercial) Functions: If the act was committed in the course of non-sovereign (or commercial/private) functions (e.g., maintaining docks, railway, government factories), the State would be liable, just like any other employer.

2. Judicial Evolution and Narrowing the Unity:

The Courts, recognizing the welfare nature of the modern state, began to narrow the scope of 'sovereign functions' and expand State liability.

a. Immunity Discarded for Non-Sovereign Functions

1. State of Rajasthan v. Vidyawati (1962): The Supreme Court held the State liable for the negligence of a government driver while driving a government jeep for official purposes. The function (maintenance of a jeep for a public servant's use) was clearly non-sovereign. The court advocated for the removal of the distinction, stating that the law should be on par with England, where Crown immunity was largely abolished.

b. Immunity Maintained for Strictly Sovereign Functions

1. Kasturi Lal Ralia Ram Jain v. State of U.P. (1965): This decision reaffirmed the P&O Steam Navigation rule and granted immunity. In this case, gold was seized by the police (a sovereign act—administration of justice/maintenance of law and order) and later misappropriated by a police official. The SC held that since the tort was committed by a servant while performing a duty that was directly a part of the sovereign function of the State, the State was not vicariously liable. This case became the leading authority for the rule of immunity for truly sovereign functions.

The Post-Kasturi Lal Shift: The Constitutional Tort Approach:

Following the criticism of Kasturi Lal, the Supreme Court started evolving a new jurisprudence, linking State liability to the violation of fundamental rights and adopting the concept of Constitutional Tort.

1. Distinction Diluted and Compensation Under Public Law

In cases involving the violation of fundamental rights, especially under Article 21 (Right to Life and Personal Liberty), the courts bypassed the sovereign/non-sovereign distinction to grant monetary compensation using their powers under Article 32 (SC) and Article 226 (High Courts).

Relevant Case Laws:

1. Rudal Shah v. State of Bihar (1983): The SC ordered compensation for illegal detention after acquittal, marking the beginning of the "Constitutional Tort" remedy for violation of fundamental rights.

1. Nilabati Behera v. State of Orissa (1993): The SC explicitly held the State strictly liable for the custodial death of a person. It distinguished this from the common law action in torts (Kasturi Lal), calling it a public law remedy for the violation of fundamental rights. It stated that the defence of sovereign immunity is not available where fundamental rights are breached.

2. Current Position and Decline of Sovereign Immunity

The Supreme Court has effectively limited the application of the Kasturi Lal principle to purely theoretical or military operations, expanding State liability in almost all other areas.

Some important case laws with respect to Vicarious Liability of the State (Position in India) are as follows:

1. State of Andhra Pradesh v. Challa Ramakrishna Reddy (2000): The court held that the doctrine of sovereign immunity has no relevance in the context of the fundamental rights of a citizen and the State is liable to pay compensation for the negligence of its officers, including police and jail authorities.

1. N. Nagendra Rao & Co. v. State of A.P. (1994): The SC criticized the rigid application of sovereign immunity, stating that the concept has no place in a modern welfare state. It held the State liable for the loss of goods seized and kept in custody under the Essential Commodities Act.

1. S. R. Ramalingam v. State of Tamil Nadu (2018): The Madras High Court upheld the State's vicarious liability for the negligence of government employees in maintaining safety standards, leading to a loss of life.

The current trend in India is towards abolishing the distinction between sovereign and non-sovereign functions for the purpose of granting relief to the citizen, especially when the tort involves the violation of a fundamental right. The judiciary has extensively used the public law remedy to ensure State accountability and uphold the rule of law in a welfare state.