State’s Liability and The Doctrine of Sovereign Immunity #
I. Introduction and Genesis #
The Doctrine of State Liability, a crucial area of Public Law, deals with the extent to which a State or Government is answerable in tort or contract for the actions of its servants. Historically, this concept has been governed by the Doctrine of Sovereign Immunity (SI), which originated in the English common law maxim, “Rex non potest peccare” (The King can do no wrong).
Sovereign Immunity implies that the Crown (or the State in a modern democracy) cannot be sued in its own courts without its consent. In the Indian context, the constitutional foundation for determining State Liability is laid down in Article 300 of the Constitution, which states that the Government of India may sue or be sued in relation to its affairs in the like cases as the Dominion of India and the corresponding Provinces or Indian States might have sued or been sued immediately before the commencement of the Constitution.
II. The Critical Classification of State Functions (The P. & O. Test) #
The Indian judiciary, particularly post-independence, grappled with balancing this historical immunity against the democratic need for governmental accountability. The solution lay in distinguishing between the nature of governmental functions:
- Sovereign Functions (Jus Imperii): These are inherently sovereign acts which only a State can perform, such as maintaining the army, waging war, foreign affairs, administering justice, maintaining law and order, and acts of State. For torts arising from acts done in the exercise of these functions, the State is generally held immune.
- Non-Sovereign / Commercial / Jural Functions (Jus Gestionis): These are functions that a private individual or body could also undertake, such as running a bus service, maintaining a dockyard, managing commercial undertakings, or engaging in contractual works. For torts arising from these functions, the State is held liable, similar to a private employer under the principle of vicarious liability.
III. Evolution of Indian Jurisprudence: Key Case Laws (FIRAC) #
The judicial journey regarding Sovereign Immunity in India is marked by four key phases: establishment of the distinction, initial affirmation, the controversial setback, and finally, its circumvention through Public Law remedies.
Case 1: P. & O. Steam Navigation Co. v. Secretary of State for India (1861) #
| Aspect | Description |
|---|---|
| Facts | A servant of the P. & O. Company was travelling in a carriage which was damaged due to the negligence of the Government’s servant, who was engaged in managing a dockyard (a commercial undertaking). |
| Issue | Was the Secretary of State (representing the Government) liable for the negligent act of its servant? |
| Rule | The court established the fundamental distinction: the Government is liable for torts committed in the discharge of non-sovereign/jural functions, but immune for those committed during sovereign/acts of state functions. |
| Application | The maintenance and operation of a dockyard was held to be a non-sovereign function, akin to a commercial enterprise. The principle of respondeat superior (vicarious liability) applied. |
| Conclusion | The Government was held liable for the damage caused by the negligence of its employee. |
Case 2: State of Rajasthan v. Mst. Vidyawati (1962) (Affirmation of Liability) #
| Aspect | Description |
|---|---|
| Facts | A government jeep, maintained for the Collector of Udaipur, was being driven back from a workshop by a temporary driver (Lokumal). Due to his rash and negligent driving, he struck and killed a pedestrian, Jagdishlal, on the footpath. |
| Issue | Was the State of Rajasthan vicariously liable for the tortious act (negligent driving) of its servant, or could it claim sovereign immunity under Article 300? |
| Rule | The Supreme Court held that the State’s liability under Article 300 is the same as that of the East India Company, which could be sued in tort. The archaic English doctrine of absolute Sovereign Immunity has no place in the jurisprudence of a modern welfare state. |
| Application | The maintenance and driving of a jeep for the Collector’s civil service use was not an act connected with the exercise of sovereign powers. It was a non-sovereign, administrative function. |
| Conclusion | The State was held vicariously liable for the driver’s negligence and directed to pay compensation. This ruling strongly affirmed State liability for non-sovereign acts. |
Case 3: Kasturi Lal Ralia Ram Jain v. State of U.P. (1965) (The Setback) #
| Aspect | Description |
|---|---|
| Facts | Police officers seized a substantial quantity of gold and silver from a person suspected of smuggling. The gold was kept in police custody. Due to the negligence of the Head Constable, who misappropriated the gold, it could not be returned. |
| Issue | Was the State liable for the loss of property caused by the negligence of a police officer acting in the course of his sovereign duty (law and order)? |
| Rule | The Supreme Court, while acknowledging the P. & O. distinction, held that the seizure and safe custody of the property were acts performed by the police in exercise of their statutory and sovereign powers (law and order/administration of justice). |
| Application | As the act was directly connected with the exercise of sovereign powers, the State was immune. The court stated that if the act was authorised by law and done in the discharge of sovereign functions, the State cannot be sued in tort. |
| Conclusion | The State was held not liable to compensate the appellant for the loss of gold. (This judgment was heavily criticized for being backward-looking and protecting the State at the expense of the citizen). |
IV. Advanced Topic: Constitutional Tort and Public Law Remedy #
The decision in Kasturi Lal created a legal void where citizens whose fundamental rights were violated by State agents during “sovereign functions” were left without a remedy. This led to judicial activism in the 1980s, culminating in the creation of the doctrine of Constitutional Tort or the Public Law Remedy.
This new doctrine distinguishes the claim for monetary compensation for breach of fundamental rights (Public Law) from the traditional claim for damages under the law of torts (Private Law).
Case 4: Nilabati Behera v. State of Orissa (1993) #
| Aspect | Description |
|---|---|
| Facts | Son of the petitioner was arrested by the police and detained in custody. His body, with multiple injuries, was found on a railway track the following day. The petitioner filed a writ petition claiming compensation. |
| Issue | Can the Supreme Court, in exercise of its jurisdiction under Article 32, award monetary compensation for the infringement of the Fundamental Right to Life (Article 21) caused by the negligence of the State’s servants? |
| Rule | The Court held that compensation is a necessary public law remedy for the infringement of Article 21, and this remedy is in addition to, and not in derogation of, the private law remedy under the law of torts. The doctrine of Sovereign Immunity (Kasturi Lal) is inapplicable to claims for compensation for violation of fundamental rights. |
| Application | Custodial death is a gross violation of Article 21. The State has an obligation to protect the life and liberty of individuals, especially those in custody. The State’s breach of this non-delegable duty mandates immediate public law compensation. |
| Conclusion | The State was held liable and directed to pay compensation (ex gratia payment) to the petitioner. This landmark case effectively provided a potent tool to bypass the Sovereign Immunity defense in cases of Fundamental Right violations. |
V. Current Position of Law #
The current legal position in India regarding State Liability in tort can be summarised as follows:
- Non-Sovereign Acts: The State is fully liable, just like any private individual, as established in the P. & O. case and affirmed in the Vidyawati case.
- Sovereign Acts (Private Law): The State may still claim immunity under the controversial rule laid down in Kasturi Lal, but the scope of what constitutes a “sovereign function” is constantly being narrowed by the courts.
- Violation of Fundamental Rights (Public Law/Constitutional Tort): If the tortious act of the State servant results in the violation of a Fundamental Right (especially Article 21 and Article 19), the State is absolutely liable under the Public Law remedy, and the defence of Sovereign Immunity is entirely unavailable (Nilabati Behera).
- Legislative Stance (The Missing Link): Despite repeated judicial calls, Parliament has not yet enacted a comprehensive law to replace Article 300 and abolish Sovereign Immunity fully.
The trend in modern jurisprudence is unequivocally towards upholding the principle of accountability of the State over the archaic notion of immunity.
