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TitleVicarious Liability of State
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That was a case where the driver of a Government jeep, which was being used by the

Collector of Udaipur, knocked down a person walking on the footpath by the side of a

public road. The injured person died three days later, in the hospital. The legal

representatives of the deceased sued the State of Rajasthan and the driver for

compensation / damages for the tortious act committed by the driver. It was found by the

court, as a fact, that the driver was rash and negligent in driving the jeep and that the

accident was the result of such driving on his part. The suit was decreed by the trial court,

and also by the High Court. The appeal against the High Court judgment was dismissed

by the Supreme Court. The position of law, obtaining both prior and subsequent to 1858,

the position obtaining under article 300 of the Constitution and the facts and

circumstances leading to the formation of the State of Rajasthan, were all reviewed by the

Supreme Court in State of Rajasthan Vs. Vidyawati.

Kasturi Lal case

However, a different note was struck by the Supreme Court itself in Kasturi Lal Vs.

State of UP, AIR 1965 SC 1039. In that case, the plaintiff had been arrested by the police

officers on a suspicion of possessing stolen property. On a search of his person, a large

quantity of gold was found and was seized under the provisions of the Code of Criminal

Procedure. Ultimately, he was released, but the gold was not returned, as the Head

Constable in charge of the malkhana (wherein the said gold was stored) had absconded

with the gold. The plaintiff thereupon brought a suit against the State of UP for the return

of the gold (or in the alternative) for damages for the loss caused to him. It was found by

the courts below, that the concerned police officers had failed to take the requisite care of

the gold seized from the plaintiff, as provided by the UP Police Regulations. The trial

court decreed the suit, but the decree was reversed on appeal by the High Court. When the

matter was taken to the Supreme Court, the court found, on an appreciation of the relevant

evidence, that the police officers were negligent in dealing with the plaintiff’s property

and also, that they had also not complied with the provisions of the UP Police Regulations

in that behalf. In spite of the said holding, the Supreme Court rejected the plaintiff’s

claim, on the ground that “the act of negligence was committed by the police officers

while dealing with the property of Ralia Ram, which they had seized in exercise of

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their statutory powers. 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 be properly categorized as sovereign powers; and so,

there is no difficulty in holding that the act which gave rise to the present claim for

damages has been committed by the employee of the respondent during the course of its

employment; but the employment in question being of the category which can claim the

special characteristic of sovereign power, the claim cannot be sustained.”

Suggestion in Kasturi Lal’s case

Having thus rejected the claim, the Supreme Court made the following pertinent

observations in Kasturi Lal Vs. State of UP (AIR 1965 SC 1039):

“Before we part with this appeal, however, we ought to add that it is time that the

Legislatures in India seriously consider whether they should not pass legislative

enactments to regulate and control their claim from immunity in cases like this, on the

same lines as has been done in England by the Crown Proceedings Act, 1947. It will be

recalled that this doctrine of immunity is based on the common law principle that the

King commits no wrong and that he cannot be guilty of personal negligence or

misconduct, and, as such, cannot be responsible for the negligence or misconduct of his

servants. Another “aspect of this doctrine was that it was an attribute of sovereignty that a

State cannot be sued in its own courts without its consent. This legal position has been

substantially altered by the Crown Proceedings Act, 1947 (10 and 11 Geo. 6 c. 44). As

Halsbury points out, “Claims against the Crown which might, before 1st January, 1948,

have been enforced, subject to the grant of the royal fiat, by petition of right may be

enforced, as of right and without a fiat, by legal proceedings taken against the Crown.

That is the effect of S. 1 of the said Act. Section 2 provides for the liability of the Crown

in tort in six classes of cases covered by its clauses (1) to (6). Clause (3), for instance,

provides that where any functions are conferred or imposed upon an officer of the Crown

as such either by any rule of the common law or by statute, and that officer commits a tort

while performing or purporting to perform those functions, the liabilities of the Crown in

respect of the tort shall be such as they would have been, if those functions had been

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“The determination of vicarious liability of the State being linked with (the) negligence of

its officers, if they can be sued personally for which there is no dearth of authority and the

law of misfeasance in discharge of public duty having marched ahead, there is no

rationale for the proposition that even if the officer is liable, the State cannot be sued.”

Uncertainty of the law

It would be evident from the Nagendra Rao and other case law on the subject, that

definiteness of the precise contours and certainty of principles of universal application are

lacking. While holding that the distinction between sovereign powers and non-sovereign

powers has become academic in the present day Welfare State, the court in Nagendra

Rao (with respect) again affirms and accepts the theory of “primary and inalienable

functions”. One can understand the difficulty faced by the Bench in Nagendra Rao’s case.

It was a Bench of two judges, whereas Kasturi Lal’s case was decided by a Constitution

Bench of five judges. (Of course, Vidyawati was also decided by a Constitution Bench of

five judges). There is a manifest conflict of judicial decisions. In theory, the dividing line

between sovereign and non-sovereign functions is the criterion of liability. But there are

serious disparities in the stance adopted by various courts in this regard. Courts

themselves have expressed their uneasiness about this test and about the difficulties in its

practical application- particularly in Kasturi Lal case and N. Nagendra Rao case.

The present state of the law

From the brief discussion of the present state of the law relating to liability of the State in

tort in India, it is apparent that the law is neither just in its substance, nor satisfactory in

its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of

the exercise of sovereign functions – a concept which itself carries a flavour of autocracy

and high-handedness. One would have thought that if the State exists for the people, this

ought not to be the position in law. A political organisation which is set up to protect its

citizens and to promote their welfare, should, as a rule, accept legal liability for its

wrongful acts, rather them denounce such liability. Exceptions can be made for

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