English law
The old and fundamental principle of English Constitution is that the ‘King can do no wrong’. This maxim means that the King is not personally liable for any wrongful act, in other words no action can be brought against him in a court of law. An act done by the king is not a wrong in law and nor he is liable for the wrongful acts done by his servants, because he cannot order for doing an illegal act. But the servants of the Crown will be liable personally for an wrongful act and they cannot take the defence of ‘Kings order’ or ‘State’s necessity’. The above system was unsatisfactory and the law needed to be changed. As a result of this the Crown Proceedings Act, 1947 was passed in England.
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The Crown Proceedings Act, 1947 has now completely changed the above law. Under this Act the crown is liable for all wrongful acts of its servants in the same way as any individual of full age and capacity is liable. Section 2(1) of the Act provides that subject to this, Crown shall be liable to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subjected (1) in respect of torts committed by its servants or agents provided that the act or omission of the servants or agent would, apart from the Act, have given rise to a cause of action in tort against the servant or agent or against his estate, (2) in respect of breach of those duties which a person owes to his servants or agents at common law by reason of being their employer (3) in respect of any breach of duties attaching at common law to the ownership, occupation, possession or control of property. Liability in tort also extends to the breach by the Crown of a statutory duty. It is also no defence for the Crown that the tort was committed by its servants in the course of performing or purporting to perform functions entrusted to them by any rule of the common law or by statute. However, Section 40 make it clear that nothing in the Act authorises proceedings in tort against the Crown in its private capacity, or affects powers or authority exercisable by virtue of the prerogative of the Crown or conferred upon the Crown by the statute.
Position in Indian Law:
The common law maxim that ‘the King can do no wrong’ have never been applied in India. Article 300(1) of the Constitution of India provides as follows:
“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 many be made by on 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 like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been if this Constitution had not been enacted.”
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But the President of India and the Governors of State enjoy personal immunity and they are not an answerable to any court as provided in Article 361 of the Constitution for the exercise of and performance of the powers and duties of their officers.
Thus under article 300 the Union of India and all the States are legal persons and they can sue and be sued like any individual. But the extent of their liability by the series of Constitution Acts starting from 1858 and ending with the Constitution of India in 1950 is the same as was the liability of the Secretary of State for India under Section 65 of the Government of India Act, 1858. In other words, the extent of liability of the Union of India and the States under Article 300(1) of the Constitution is the same as the liability of the East India Company. But this is subject to this that new liability can now be imposed by the constitution or laws made thereunder it.
After the present Constitution came into operation the question regarding the extent of States liability for torts committed by its servants for the first time arose before the Supreme Court in the case of State of Rajasthan v. Mst. Vidyawati. In that case, the driver of a jeep, owned and
maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly and negligently while bringing it back from the workshop after repairs and knocked down a pedestrian and fatally injured him. As a result of the injuries the pedestrian died. His widow sued the State of Rajasthan for damages. The Supreme Court held that the State was liable and awarded damages to the widow of the deceased. The accident took place while the driver was bringing the jeep back from the workshop to the Collector’s residence. It cannot be said that the driver was employed on a task which was based on delegation of sovereign or governmental powers of the State. His act was not an act in the exercise of a Sovereign function. The Court said that the employment of driver of the jeep car for the use of a Civil Servant was an activity which was not connected in any manner with the Sovereign power of the State at all.
The Court approved the distinction made by Peacock, C.J. in Steam Navigation case between the “sovereign function” and the “non-sovereign function” of the State. However, Sinha, C.J., made an important observation in Vidyawati’s case. His Lordship said that the common law immunity rule based on the principle that ‘the king can do no wrong’ has no application and validity in this country. “There should be no difficulty in holding that the State be as much liable for tort and in respect of a tortious acts committed by its servant and functioning as such as any other employer… In India ever since the time of East India Company, the Sovereign has been held to be sued in tort or in contract, and the common law immunity never operated in India. Now we have by our Constitution established a republican from of Government and one of the objects is to establish a Socialist State….there is no justification, in principle of the public interest, that State should not be held liable vicariously for the tortious acts committed by its servants…”
The question of liability of the State for torts committed by its servants again came up for consideration of the Supreme Court in Kasturi Lal v. State of U.P., In this case, a partner of Kasturilal Raliaram, a firm of jewelers of Amritsar, went to Meerut for selling gold and silver. He was taken into custody at Meerut by police constables on suspicion of possessing stolen property and taken to police station. He was kept in police lock-up and the gold and silver recovered from him on search were kept in the custody of the police in the police Malkhana till the disposal of the case. He was released and his silver was returned to him. But the gold was not returned to him because the Head constable who was incharge of the Malkhana appropriated it and fled to Pakistan. The appellant filed a suit against the State of U.P. for the return of the ornaments or in the alternative for compensation for the loss caused by negligence of the Meerut police. The State contended that no liability would accrue for acts committed by a public servant where such acts were related to the exercise of sovereign power of the State. The Supreme Court held that the State was not liable on the basis of the rule that the tort was committed by the police officers in the exercise of delegated
sovereign powers of the State. The Court approved the distinction made in the Navigation case between sovereign and non-sovereign functions of the State.
The decision of the Supreme Court was criticised by the jurists. It gives the impression that the decision in the P & O Navigation case was followed uniformly in India although it was dissented to by the Madras and Bombay High Court and also has been ‘abolished even in England by the Crown Proceedings Act, 1947.
Demise of State immunity Rule :
Although the decision of the Supreme Court in Kasturilal’s case has not yet been overruled but the subsequent decisions of the courts have undermined its authority and limited the extent of the principle of State immunity to a very limited area. These decisions of the court made it clear that in modern times the distinction between ‘sovereign’ and ‘non sovereign’ function of the State has almost been obliterated.
In the landmark judgment arbitrated in Nagendra Rao & Co. V. State of A.P.,’ the two judge bench of the Supreme Court has held that the doctrine of foreign immunity has no relevance in the present day context.
In Satyawati v. Union of India an Air Force Vehicle was carrying hockey team of Indian Air Force to play a hocky match. After the match was over, when the driver was going to park the vehicle he caused the fatal accident by his negligence. It was argued that it was one of the functions of the State to keep the army in proper shape and tune and that hockey team was carried by the vehicle for the physical exercise of the Air Force personal and therefore the Government was not liable. The Court rejected this argument and held that the carrying of hockey team to play a match could by no process of extensio in be termed as exercise of sovereign power and the Union of India was therefore liable for damages caused to the plaintiff.
In Union of India v. Sugrabai, one Mr. Abdul Mazid was knocked down by a military truck engaged in carrying a machine to the school of Artillery. The machine was sent for repairs to military workshop and after repairs it was being transported to the school of Artillery. It was a machine for locating enemy guns which was meant for giving training to military officers. The government lawyer argued that training of army personnel was a sovereign function which in term required maintenance of machines, and maintenance of machines required that they should be kept in proper repair, and the work of required its transportation from workshop to military school and therefore transportation was a sovereign function. The Court rejected the argument that every act which is necessary for the discharge of a sovereign function involves an exercise of sovereign power. Many of these acts do not require to be done by the State through its servants, for example supply of food to army which
may be transported in trucks belonging to private persons. The Court said that though the transportation of the machine from the workshop to the military school was necessary for the training of army personnel but it was not necessary to transport it through a military truck driven by defence personnel. The machine could have been carried through a private carrier without any material detriment for the discharge of by the State of its sovereign function of maintaining army personnel. The court accepted that in certain cases transporting of machine by a military truck can be regarded as a sovereign function e.g., carrying machine for the immediate use of army engaged in active military duty.
In Rooplal v. Union of India the military jawans in the employment of the Union of India lifted the drift wood belonging to the plaintiff and carried it through military vehicles for the purposes of camp fire and fuel. The Court held that the act was done by jawans in the course of the employment and the government was liable for damages. Even assuming that the wood lying on the river side belonged to the Government, the State was liable to compensate the plaintiff when ultimately it was found to belong to the plaintiff. Reasoning was that illegal act in carrying away the fire wood could be committed by the military jawans by carrying it through any other truck which any private person could do.
In Thangarajan v. Union of India, an army driver was deputed for collecting CO2 gas from the factory and to deliver it to the naval ship. I.N.S. Jamuna. As a result of rash driving he knocked the appellant, a minor boy aged about 10 years. It was held that the accident was caused to the plaintiff while the driver was driving the lorry for the purpose of supply of CO2 gas to the naval ship I.N.S. Jamuna which was in exercise of sovereign function of the State for maintaining military purposes. However, in view of the peculiar circumstances of the case the Court strongly recommended to the Central Government to made an ex gratia payment of Rs. 10,000 to the appellant. The Court observed, “It is cruel to tell the injured boy who has suffered grievous injuries and was in hospital for 6 months incurring considerable expenditure and has been permanently incapacitated that he is not entitled to any relief as he had the privilege of being knocked down by a lorry which was driven in exercise of sovereign function of the State.”
In State of Orissa v. Padamlochan, the plaintiff filed a suit for damages against the State of Orissa for injuries cause to him by the Orissa Military police. The fact was the in apprehension of danger of attack on the office of the sub-divisional office (SDO) and the properties by an unlawful mob which resorted to violence, there was a police cordoning in the O.M.P. under control of supervisory officers and magistrates without any orders from the magistrate or higher authorities the police personal assaulted members of the mob as a result of which the plaintiff by the police personnel with a view to disperse the unlawful crowed were in exercise of the Sovereign function of the State. As the posting of police for the protection of its officers, and properties was in exercise of the delegated sovereign function, the fact that the police committed excess in discharge of their function without authority could not take away the illegal act from the purview of delegated sovereign function. The State was held to be not liable for the police excesses.
Question:- Discuss the Tortious liability of the Crown or State.
Or
Question:- “A Suit for Tort cannot be brought against the Crown or State.” Examine this statement.