Tortious Liability of Government PDF
Tortious Liability of Government PDF
Tortious Liability of Government PDF
U.S.A.
In U.S.A. also the English doctrine of sovereign immunity
was applied to protect the Government from suits relating to
the torts of its employees. However, this immunity was not
France
In France the ideas of French Revolution led to the con-
viction that sovereign responsibility should replace the out-
India
In India there is no legislation relating to governmental
liability in torts. The only provision is Article 300 9 of the
Indian Constitution which imposes the same liability on the
Union and the States as that of the liability of the Dominion
and the provinces before the enactment of the Constitution.
Before the Constitution there was a chain of enactments" which
ultimately made the liability same as that of the East India
Company before the passing of the GovernMent of India Act
1858.
It is in the landmark decision of the Calcutta Supreme
Court, Penninsular & Oriental Steam Navigation Co. v. Secre-
tary of State, • " 'that the extension of immunity of the Crown to
the Company was directly discussed. The facts of the case are
as follows. One of the horses of the plaintiff's carriage was
Id., p. 13.
Id., p. 15.
A. PRASANNA 419
of the Union of India or the States for the tortious acts of its
employees in later years because of the retroactive effect of
Article 300 of the Indian Constitution and the chain of refer-
ences in the laws of the past.
This test is so broad that it confers wide discretion on the
judge to characterise a function as sovereign or non-sovereign
according to his will and pleasure. If he is inclined to do justice
to individuals he may interpret the term "non-sovereign func-
tion" widely and make the State liable. On the contrary, if he
is biased in favour of the State he may give a liberal interpreta-
tion to the term "sovereign function" and save the Government
from liability.
However the development of the case-law in this area is
interesting. There is a shift in the judicial attitude when India
has changed from Police State 14 to Welfare State. Laissez-faire
concept favoured non-liability of the State. while Welfare State
concept State liability. This can be illustrated through case law.
Functions of Police
294) the plaintiff's claim for damages for wrongful arrest and im-
prisonment by certain police officers was dismissed as the function
involved was sovereign in nature.
In Gurucharan Kaur v. Province of Madras (A.I.R. 1942 Mad.
539) a complaint against wrongful detention was held not main-
tainable.
In Shivabhajan v. Secretary of State (28 I.L.R. Bom. 314 (1904)
the illegal seizure of certain bundles of hay by the police was
justified as an act done in the discharge of a statutory duty. This
rule was followed in Ross v. Secretary of State, 39 I.L.R. Mad.
279 (1916) to save the Government from liability arising out of
an illegal closure of a labour-recruting depot belonging to the
plaintiff.
In State v. Padmalochan (A.I.R. 1975 Ori. 41) injuries sustained
by the plaintiff by the police lathi-charge while dispersing an un-
lawful mob and in State of M.P. v. Chironjilal (A.I.R. 1981 M.P.
65) loss caused to the plaintiff by police lathi-charge were dis-
missed on the ground of sovereign immunity.
A.I.R. 1965 S.C. 1039.
Id. at p. 1048.
Ibid.
422 COCHIN UNIVERSITY LAW REVIEW
Judicial functions
33. In Matti Prasad v. Secretary of State (A.I.R. 1931 Oudh. 29) the
Government was held not liable in respect of matters arising out
of the administration of justice through its Courts.
In Secretary of State for India v. Sukhadeo, (1899) 21 All. 341,
suit was brought by Sukhadeo against the Secretary of State to
recover certain property which had been seized by a magistrate in
satisfaction ofa fine imposed on his son. The Secretary of State
was held not liable for the seizure of property by the Court. Simi-
larly acts of the official receiver in the discharge of his duties
under the orders of the Court were held to impose no liability on
the Secretary of State in Ram Sankar v. Secretary of State (A.I.R.
1932 All. 575).
A. PRASANNA 425
and was not liable for damages for the injury sustained by the
plaintiff through coming into contact with a post set up by the
Government on a public road. In K. Krishnamurthy v. State of
A.P. 36 the plaintiff lost his right palm in an accident due to the
rash and negligent driving of the road roller belonging to the
Government. Justice Kumarayya of the Andhra Pradesh High
Court observed that the road roller was used for the maintenance
of highways which was a public purpose; the Government was
not undertaking any commercial activity in the .discharge of
that duty and so no liability would be attached.
Strictly speaking, maintenance of public paths or highways
is part of the welfare functions undertaken by the Government
in the interest of the public at large. The inclusion of this func-
tion in the category of sovereign functions reveals the reluc-
tance of the Indian Judiciary to deviate from the laissez-faire
judicial thinking.
Act of State
Commercial functions
In State of M.P. v. Ram Pratap (A.I.R. 1961 Punj. 336) the State
was held liable for injuries caused to the plaintiff by the negligent
driving of a: truck belonging to the Public Works Department as
most of the activities carried out by the P.W.D. could be carried
on by the private contractors. See also Rap Ram v. The Punjab
State, A.I.R. 1972 Born. 93.
A.I.R. 1962 S.C. 933.
52. Id., p. 940.
430 COCHIN UNIVERSITY LAW REVIEW
Welfare functions
Welfare Functions imposing governmental liability include
construction of reservoir 54 famine relief work, 55 and maintenance
of hospitals. 56 It is suggested that the State can be sued by
citizens for the negligence of Government employees in the
course of providing welfare services like medical relief, control
and prevention of epidemics and infectious diseases, the repair
Illegal detention
CONCLUSION
In India Government is not liable in tort for acts done in
the exercise of sovereign functions. It is liable for the torts
committed by its servants in the discharge of non-sovereign
functions. Functions carried out by Government, which can be
carried out by private individuals without any delegation of
sovereign powers of the Government are non-sovereign func-
tions. Before independence when India was a Police State, the
judicial attitude was to give a very wide interpretation to the
term 'sovereign function' by including matters incidental to
sovereign function. Accordingly, defence and police functions,
and matters incidental thereto, were included in the category
of sovereign functions.