Tortious Liability of the State

In old English law, "the King can do no wrong" and the Crown could not be sued in tort without its consent, although the servants were personally liable. In England the Crown Proceedings Act 1947 made the Crown liable like a private person. In India, the position stems from Article 300(1) of the Constitution: the Government of India or a State Government may sue or be sued in relation to its affairs in the like cases as the Dominion of India and the corresponding Provinces might have done if the Constitution had not been enacted, subject to any law enacted by Parliament or State legislatures. The earlier provisions: Section 65 of the Government of India Act 1858, Section 32 of the GIA 1915, Section 176 of the GIA 1935.

• Peninsular & Oriental Steam Navigation Co v Secretary of State for India (1861, Calcutta HC): the leading early case. A servant of the Government negligently drove a carriage from a government workshop, injuring the plaintiff's horse. Held: the Government was liable, because the act was in the course of a non-sovereign function (an undertaking that private persons might carry on); the immunity would apply only to acts done in the exercise of sovereign powers (e.g., declaring war, concluding treaties).

• Secretary of State v Hari Bhanji (1882, Madras HC): followed the P&O case; a distinction between sovereign and non-sovereign functions (dealing with the customs).

• Nobin Chunder Dey v Secretary of State (1875): the licensing of ganja trading was a sovereign act; no liability.

• State of Rajasthan v Vidhyawati (1962): a government driver negligently drove the jeep carrying a government officer, killing a pedestrian. Held: the State was vicariously liable, as the State is in the same position as any other employer; the maintenance of the vehicle was not an exercise of sovereign power. The Court rejected the idea that the immunity of the Crown in England applied in India, noting that the Constitution creates a democratic republic, not an absolute monarchy.

• Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh (1965): the police seized gold from the plaintiff on suspicion of theft; the plaintiff was released, but the gold was misappropriated by the head constable, who fled to Pakistan. Held: the State was not liable because the act (seizure of property) was done in the exercise of statutory powers of the police, which were sovereign powers; the P&O principle was applied. The Court expressed regret for the injustice and suggested that the legislature should intervene. This case has been extensively criticised and its scope has been narrowed.

• Saheli, a Women's Resources Centre v Commissioner of Police, Delhi (1990): death of a child due to police beating; the State was held liable to pay compensation (₹ 75,000); the Kasturi Lal principle was distinguished as the case involved violation of the right to life.

• N. Nagendra Rao & Co v State of Andhra Pradesh (1994): the Government seized fertiliser stock under the Essential Commodities Act, which deteriorated through the negligence of the officers. Held: the State was liable; Kasturi Lal was confined to the situation where the act is truly sovereign (exercise of powers of inalienable sovereign functions); the statutory function does not mean sovereign function; the old distinction is unsustainable in a welfare State.

• Common Cause v Union of India (1999): the Court reaffirmed the principle that the State must be held accountable.

• State of Maharashtra v Kanchanmala Vijaysing Shirke (1995); M.S. Grewal v Deep Chand Sood (2001) (the drowning of school students on an excursion; the school and the State were held liable for the negligence of the supervisors).

The Supreme Court has evolved a remedy of compensation in public law for violation of the fundamental rights, enforceable under Articles 32 and 226. This is distinct from private-law tort because it is not dependent on sovereign/non-sovereign distinction and does not need a trial of facts in a civil suit.

• Rudul Sah v State of Bihar (1983): the petitioner was kept in jail for 14 years after acquittal; the Supreme Court awarded ₹ 30,000 as interim compensation under Article 32, the first case of monetary relief in a habeas corpus petition.

• Bhim Singh v State of Jammu & Kashmir (1985): the illegal detention of an MLA to prevent him from attending the Assembly; compensation of ₹ 50,000.

• Sebastian M. Hongray v Union of India (1984): the disappearance of two persons from Army custody (Manipur); exemplary costs of ₹ 1 lakh to each of the two wives.

• Nilabati Behera v State of Orissa (1993): the custodial death of a young man; the Court awarded ₹ 1.5 lakh and declared that the defence of sovereign immunity is not available in a claim under public law for the violation of fundamental rights; the compensation is a remedy under public law and may be adjusted against any amount awarded in a civil suit.

• D.K. Basu v State of West Bengal (1997): guidelines for arrest and detention (identification of police personnel, memo of arrest, medical examination, informing a relative, a register, etc.); custodial violence violates Articles 21 and 22.

• Chairman, Railway Board v Chandrima Das (2000): the rape of a Bangladeshi national in the Yatri Niwas by railway employees; the Union of India was liable to pay ₹ 10 lakh; the Court held that fundamental rights under Article 21 are available to non-citizens also.

• People's Union for Democratic Rights v Union of India and other cases on police encounters and custodial deaths also apply this principle.

• Section 79, CPC: suits by or against the Government are filed in the name of the Union of India or the State.

• Section 80, CPC: two months' prior notice is needed before the suit (the court may grant leave in urgent cases).

• Section 82, CPC: execution of decrees against the Government; Section 86, CPC: suits against foreign States and ambassadors require the consent of the Central Government.

• Article 361: personal immunity of the President and Governors for official acts, although the Government can be sued.

The First Law Commission (1956) (M.C. Setalvad) recommended abolishing the distinction between sovereign and non-sovereign functions and making the State liable like a private employer. The Government Liability Bill 1965 (and later proposals) lapsed. The Supreme Court has therefore largely developed the position through case law.

1. The State is vicariously liable for torts of its servants in non-sovereign functions (Vidhyawati).

2. For sovereign functions (defence, administration of justice, legislative acts, acts of State), immunity may still apply in a narrow sense (Kasturi Lal), but the sovereign category is now very restricted.

3. In public law, the State is liable to pay compensation for the violation of fundamental rights, irrespective of the sovereign immunity (Rudul Sah, Nilabati Behera).

4. Public servants are personally liable for their wrongful acts, subject to statutory protections requiring sanction/notice (Section 197 CrPC, now BNSS Section 218; Section 80 CPC).

Expect: Article 300; P&O Steam Navigation Co (the earliest and most-cited); Vidhyawati vs Kasturi Lal (the contrasting results; the head constable who fled to Pakistan); Nagendra Rao; Saheli; Rudul Sah (first compensation in Article 32); Nilabati Behera; D.K. Basu; Chandrima Das; Section 80 CPC; Assertion–Reason on public law compensation vs private law damages.