There is a liability on Government of India and Governments of the Indian States if its servants commit torts against individuals. The Constitution of India does not say much on this account but indirectly equates the liability of the present Government with the former liability of the East India Company.
Article 300, by implication, refers to section 176(i) of the Government of India Act, 1935.
Article 300 of the Constitution of India
"The Government of India may sue or be sued by the name of the Union of India 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 corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted."
This article by implication refers to section 176(i) of the Government of India Act, 1935, which reads:
"The Federation may sue or be sued by the name of the Federation of India and the Provincial Governments may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by the Act of the Federation or Provincial Legislature enact by virtue of powers conferred on that legislature by this Act, sue or be sued, in relation to their respective affairs in the like case as the Secretary of State for India-in-Council might have sued or been sued if this Act has not been passed."
The implied reference is to section 32 of the Government of India Act, 1915-
(1) The Secretary of State-in-Council may sue and be sued by the name of Secretary of State-in-Council, as a body Corporate.
(2) Every person shall have the same remedies against the Secretary of State-in-Council as he might have had against the East India Company if the Government of India Act, 1858 and this Act had not been passed.
The above section of the Government of India Act, 1915 has reflections of section 65 of the Government of India Act, 1858 which reads as-
"The Secretary of State-in-Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State-in-council as a body corporate and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable against the Secretary of State and Council of India as they could have done against the said company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company."
The liability of East India Company, to which the Act of 1858 referred, was not laid down anywhere, but has to be ascertained from the study of cases.
Peninsular and Oriental Steam Navigation Company v. Secretary of State for India-in-council, 1861 Bom HCR App A-1 (3).-
There was a government dockyard based at Kiderpore, situated partly both sides of the road. A river steamer belonging to Government was also lying nearby for repairs. One day, certain workmen (Govt. employees) were riveting a piece of iron funnel casing, 300 pound in weight, nine feet long and two feet high, slung on a pole, along the road. They were walking in between the road, although enough space was left on both sides of the road. Suddenly, a private carriage appeared. The coachmen and syces shouted a warning to workmen, the carriage also slowed down. The workmen seeing the carriage close to them, dropped the iron and ran away. A loud noise frightened the horses and they rushed forward against the iron and were injured. The damages were claimed to be Rs. 350. An action was brought for recovery of these damages against the Secretary of State for India-in-Council, as employer of the workmen.
The question was-"Whether the Secretary of State-in-Council was liable for the damage occasioned by the negligence of the servants of the Government, assuming them to have been guilty of such negligence, as would have rendered an ordinary employer liable."
The Chief Justice, Sir Barrens Peacock of the Supreme Court of Calcutta, held the Government liable. He observed:
"We are of opinion that for accidents like this, if caused by the negligence of servants employed by Government, the East India Company would have been liable....... and that the same liability attached to the Secretary of State-in-Council, who is liable to be sued for the purpose of obtaining satisfaction out of revenue of India. We are of opinion that this is a liability not only within the words, but also within the spirit of the....... (Government of India Act, 1858) and that it would be inconsistent with common sense and justice to hold otherwise."
Little latter he remarked-
"There can be no doubt that the East India Company would have been liable for the negligence of their servants or officers in navigating a river steamer or in repairing the same or in doing any act preparatory to such repairs".
Further he stated-
"that there was a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertaking which might be carried on by private individuals without having such powers delegated to them".
Also-"......where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them, no action will lie."
Rule laid down in the Peninsular case was followed in many cases. But in the year 1882, Chief Justice Turner in Secretary of State v. Haribhanji, ILR (1882) 5 Mad 273, did not follow the Peninsular case. In this case, during the transit of certain salt from Bombay to Madras Port, the rate of duty was increased and Haribhanji (merchant) was asked to pay the difference at the port of destination. Although he paid the amount with protest but brought a suit to recover the amount paid. The defence gave the plea (Secretary of State-in-Council) that this was an act of sovereign power and that therefore the Court had no jurisdiction. But, Chief Justice rejected this contention by saying-
"The East India Company was not sovereign......The fact of the company having been invested with the powers usually called sovereign powers did not constitute them sovereign (and so) the personal exemption from suit, which is the attribute of sovereignty, did not attach to it.......And this is further shown by the circumstances that the company was held liable for the negligence or misconduct of its officers in cases in which the sovereign would not have been held liable even on petition of right."
Further he added-
"On the assumption by the Crown of the direct Government of British India it was provided that persons should have the same suits and remedies against the Secretary of State-in-Council as they had before been entitled to maintain and pursue against the Company. Consequently, the Secretary of State-in-Council cannot in this country claim on behalf of the Crown, the prerogative of immunity from suit."
Chief Justice Turner also pointed out that the Peninsular case held only that exemption from suit cannot be claimed in respect of "acts done in the conduct of undertakings which might be carried on by persons who enjoy no delegated powers of sovereignty." It expressed no opinion that all acts done in the exercise of powers usually termed sovereign 'would enjoy such immunity.'
Accordingly, "it will not be correct to say that the liability of the Government or its officers is restricted to acts of the former class".
This point was put forth by Turner C.J.: that acts of the Government may either be outside the province of Municipal Law or may fall within that law and that it is only of the former that the courts cannot take cognizance-
"The acts of the State of which Municipal Courts of British India are debarred from taking cognizance, are acts done in the exercise of sovereign powers which do not profess to be justified by Municipal Law. Where an act complained of is professedly done under the sanction of Municipal law and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power and is not an act which would possibly be done by a private individual, does not oust the jurisdiction of civil courts."
Kasturi Lal v. State of Uttar Pradesh, MANU/SC/0086/1964 : AIR 1965 SC 1039: (1966) II LLJ 583 SC: (1965) 1 SCR 375.-
The Supreme Court modified its approach and went back to the Sovereign and non-sovereign distinction as propounded in Peninsular case-
Facts-There was a firm named M/s. Kasturi Lal and Ralia Ram. Ralia Ram was one of the partners, a bullion merchant who was arrested by the police constable on some charge and gold and silver was collected from him. The police officer under law were supposed to keep the seized gold and silver under lock and key but it was kept in Malkhana under the charge of one Head Constable, Md. Amir, who misappropriated gold and fled to Pakistan. Ralia Ram after his release got the silver but not the gold. He brought an action against the State of Uttar Pradesh for loss of his asset due to negligence of the police officers employed by State Government.
Gajendragadkar C.J. read the unanimous opinion of the Supreme Court holding that the State Government was not liable as the act of negligence was committed by the police officers in the exercise of sovereign powers. He remarked-
"Now, the power to arrest a person, to search him, and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can properly be characterized as sovereign powers; and so, we inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that the present claim is not sustainable".
Gajendragadkar C.J.; accepted the distinction drawn by Peacock C.J. in Peninsular case between sovereign and non-sovereign function of the State, in determining its liability in tort. The appellant's contention to extend the principle of Vidyawati case was rejected by the Supreme Court. The court distinguished the present case with that of Vidyawati's case and observed-
"It is obvious that when the Government employee was driving the jeep car from the workshop for the collector's use, he was employed on a task or an undertaking which cannot be said to be referable to, or ultimately based on, the delegation of sovereign or governmental powers of the State....... In fact the employment of a driver to drive the jeep car for the use of a civil servant is itself an activity, which is not connected in any manner with the sovereign power of the State at all. That is the basis on which the decision must be deemed to have been founded; and it is this basis which is absent in the case before us."
The Supreme Court then stated the rule for determining the liability of the State for the tort of its servants as follows:
"If a 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 to such public servant? If the answer 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 the 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 the servant, who might have been employed by private individual for the same purpose."
Thus, in case of Kasturi Lal, Supreme Court accepted the principle as laid down by Barnes Peacock C.J. in Peninsular case of 1861 and held that the Government would not be liable for the tortious act committed by its servants in course of exercising sovereign functions.
State of Orissa v. Padmalochan, MANU/OR/0014/1975 : AIR 1975 Ori 41.-In apprehension of an attack on the office of the Sub-Divisional Officer. Orissa Military Police, under supervision of a Magistrate cordoned off the area. As expected a mob emerged on the scene and some police personnel manhandled some persons of the mob resulting in injury to plaintiff. The court observed that although police personnel manhandled the plaintiff without permission of the Magistrate but it occurred while exercising the sovereign power.
Baxi Amrik Singh v. Union of India, (1972) 1 MLJ 71.-There was an accident between a car and a military truck. Truck was driven by the driver who was an employee of military department. Amrik Singh, who was in the car, received serious injuries. He brought an action against the department. The court observed that the driver was on duty to check army-personnel-on-duty throughout the day. The Court's view was that checking of the Army-personnel-on-duty was a function intimately connected with the Army discipline and it could only be performed by a member of the Armed-forces who is detailed on such duty. Accordingly driver was discharging the sovereign function.
Union of India v. Sugrabai, MANU/MH/0038/1969 : AIR 1969 Bom 13: (1968) 70 Bom LR 212: ILR 1968 Bom 998.-A military driver on a military truck was transporting machines and other equipments from military depot to training school. Bombay High Court asked a question - Was it absolutely necessary for the Government to have that work performed by its own employees? The Government could not prove it. Accordingly, the court held that it was a function which could be performed by a private person and hence the Government was liable.
Satyawati Devi v. Union of India, AIR 1967 Del 98: (1969) II LLJ 195 Del.-Two teams of Hockey and Basket-Ball of Air Force employees were driven on a vehicle which belonged to Air Force. It was also driven by Air Force Driver. Due to negligence of driver, the vehicle met with an accident and plaintiff's husband got killed in the accident. Widow of the deceased brought an action against the government. Defence plea was that physical exercises were necessary to keep the personnel in shape so such an act should be considered as sovereign function of the Government. But, the Court rejected the Government's contention and held that the act of carrying the teams to play matches could be performed by a private individual and, therefore, it was not sovereign function and the Government was liable.
Even after suggestion made by the Supreme Court, the Parliament is yet to change the existing bad law, due to which citizens are still suffering. A new line of action under writ jurisdiction (Articles 32 and 226) has been adopted to render justice and compensate those whose fundamental right to life and personal liberty under Article 21 (or any other fundamental right) of the Constitution of India, are violated by the wrongful acts of Government officials while performing even sovereign functions.
e.g. Rudul Sah v. State of Bihar, MANU/SC/0380/1983 : AIR 1983 SC 1086: 1983 Cr LJ 1644: 1983 (2) SCALE 103: MANU/SC/0380/1983 : (1983) 4 SCC 141: (1983) 3 SCR 508; Sebastian M. Hongray v. Union of India, MANU/SC/0080/1984 : (1984) 3 SCC 82: 1984 Cr LJ 830: (1984) 3 SCR 544: 1984 (16) UJ 1021 (SC); Bhim Singh v. State of Jammu and Kashmir, MANU/SC/0064/1985 : AIR 1986 SC 494: 1986 Cr LJ 192: 1985 (2) SCALE 1117: MANU/SC/0064/1985 : (1985) 4 SCC 677: 1986 (1) UJ 458 (SC); and SAHELI v. Commissioner of Police, Delhi, MANU/SC/0478/1989 : AIR 1990 SC 513: 1990 ACJ 345: 1990 (1) Crimes 469 (SC): JT 1989 (4) SC 553: (1990) 98 PLR 609: 1989 (2) SCALE 1315: MANU/SC/0478/1989 : (1990) 1 SCC 422: (1989) Supp 2 SCR 488: 1990 (1) UJ 434 (SC), illustrates that while performing sovereign duties, fundamental right to life guaranteed under Article 21 of the Constitution of India is not available if it has been infringed by State or its officers.
In Nilabati Behra v. State of Orissa, MANU/SC/0307/1993 : AIR 1993 SC 1960: 1993 ACJ 787: 1993 Cr LJ 2899: JT 1993 (2) SC 503: 1993 (II) OLR (SC) 50: 1993 (2) SCALE 309: MANU/SC/0307/1993 : (1993) 2 SCC 746: (1993) 2 SCR 581, petitioner's son died as a result of injuries inflicted on him in police custody. The petitioner sent a letter to the Supreme Court regarding all this suffering. The Supreme Court treated it as a petition under Article 32 of the Constitution. Hon'ble Court held the State of Orissa liable and awarded a compensation of Rs. 1,50,000 to the petitioner. Justice Verma delivering the judgment observed-
"Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort."
Some more cases:
SAHELI v. Commissioner of Police, Delhi, MANU/SC/0478/1989 : AIR 1990 SC 513: 1990 ACJ 345: 1990 (1) Crimes 469 (SC): JT 1989 (4) SC 553: (1990) 98 PLR 609: 1989 (2) SCALE 1315: MANU/SC/0478/1989 : (1990) 1 SCC 422: (1989) Supp 2 SCR 488: 1990 (1) UJ 434 (SC) - Due to beating and assault by a police officer, a boy aged 9 died. On a writ petition, the Supreme Court awarded the compensation of Rs. 75,000 to the petitioner.
R. Gandhi v. Union of India, MANU/TN/0225/1989 : AIR 1989 Mad 205: (1988) II MLJ 493 - Under Article 226, the Madras High Court while hearing a public interest litigation allowed a compensation of Rs. 33.39 lakhs against the State to 39 Sikh families as it had failed to protect the properties of these families in a riot which erupted in Coimbatore after the assassination of former P.M. Smt. Indira Gandhi on 31st October, 1984.
Kalawati v. State of Himachal Pradesh, MANU/HP/0002/1989 : AIR 1989 HP 5 - In this case two persons died in a Government Hospital owing to negligence of hospital staff who administered nitrous oxide in place of oxygen to the patients. The High Court awarded compensation under Article 21.
There are two types of remedies available against the State-(i) Under Article 300 of the Constitution in Law of Tort under vicarious liability; and
(ii) Under Articles 32 and 226 of the Constitution in public law for the violation of fundamental rights by the State or its officials.
Although cases of violation of fundamental rights fall under Article 300 or Articles 32/226 of the Constitution, but compensation for violation of fundamental rights can be allowed only in exceptional cases under writ jurisdiction i.e., under Articles 32/226 of the Constitution.
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