Since the Prime Minister in India is the head of the government, the liability of the Prime Minister (that is, when he has to pay damages)will be called the Tortious Liability of the state or the government.
According to the idea of tortuous state liability, the government or state is responsible for the actions of its employees. In order to carry out its mandates, the state must work through human intermediaries. Thus, following the principle of vicarious liability, the state must be held liable for tortious acts of its servants done in the period of course of employment. However, this is not always the case.
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The Crown was previously considered to be immune from tort wrongs committed under English law. In other words, the Crown, or the state was immune from liability for the wrongdoing of its employees. The idea that a king could do no wrong served as the foundation for this.As far as India is concerned, the idea that a “King can do no wrong” has never been wholly recognised in India. It is in Article 300 of the Constitution that governmental liability is established. However, a distinction has been made in India, between sovereign and non sovereign functions of the employees of the State.
This distinction originates from the time of the East India Company, when the company was liable in cases of non sovereign functions and was immune from liability when a sovereign function was involved.
In P & O Steam Navigation Co. v. Secretary of State, (1868) 5 Bom HCR App 1, the court maintained that a specific conduct qualifies as a sovereign function if it can be carried out by private individuals. The court acknowledged that there is a distinct difference between actions taken in the course of exercising sovereign authority and actions taken in the course of undertakings that private individuals may do even without being granted such authority.The Secretary of State’s actions were divided by the court into two categories: (1) sovereign and (2) non-sovereign functions. The court made it clear that the Secretary of State would not be held accountable with regard to sovereign functions. This court’s observation was adopted in a series of rulings.
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In India, the landmark judgment in this regard was KasturiLal v Union of India AIR 1965 SC 1039, in which the Supreme Court clearly stated that if a public employee commits a tort in the course of performing sovereign duties, the state is not accountable; nevertheless, if the action is taken in the course of performing non-sovereign duties, the state is liable in tort.The legal precedent set in the KasturiLal case persisted for a long period. The Supreme Court did not adhere to the rules established in KasturiLal’s case, though, in succeeding rulings. The facts of this case were always set apart from other cases by the court. However, it is important to remember that KasturiLal’s judgment has not yet been expressly overruled.
According to the Supreme Court’s ruling in N. Nagendra Rao v. State of Andhra Pradesh, (1994) 6 SCC 205, the idea of sovereign immunity cannot be used as a defence when the State is engaged in commercial business. Such a concept is also inapplicable when public servants violate citizens’ rights to life and liberty. In every one of these situations, the State ought to be considered vicariously accountable and legally required to make amends and hold harmless the victim.
In recent times, it is believed that State must be held vicariously liable whenever the right of an individual is violated by action of a government employee in the course of his or her employment.