TORTIOUS LIABILITY OF THE STATE: TRANSITIONING FROM ABSOLUTE IMMUNITY TO CONDITIONAL RESPONSIBILITY
By Poonam, Assistant Professor (Law), C.R. Law College Hisar, Haryana, India.
DOI: https://doi.org/10.5281/zenodo.15380406
ABSTRACT
Gone are the days, when people were controlled and governed by the kings. No person was permitted to raise their voice against the king. Owing to this, there was no scope for fixing the state's and its officials' liability since it was a common notion that king can do no wrong. But with time, this concept changed, and for the first time in 1861 state was made responsible in a landmark case named ‘Peninsular and Oriental Steam Navigation Co. v. Secretary of State 1861 Cal SC’. In the abovementioned authority, state was first considered responsible for its non-sovereign functions and a distinction was made between “sovereign” and “non-sovereign” functions. Under Article 300 of the constitution liability of union and states has been fixed for the wrongdoing of their officials. But traditional concept of sovereign functions kept changing as the welfare state flourished and the monarch system changed into a democratic nation. With this advancement, Various High Courts and Supreme Court in many cases restricted the immunity available to state and evolved the dimension ‘non-sovereign functions’ for protecting the public's interest and securing their fundamental rights and personal liberty. By this research paper, we shall try to analyze various facets of the state's liability where the judiciary threw away the traditional concept of ‘sovereign’ functions and held the government responsible for wrongs done by or with the permission of, negligence of its officials.
Keywords - Sovereign function, Non-Sovereign, State tortious liability, fundamental rights, negligence, personal liberty, authority constitution, CPC etc.
I. INTRODUCTION AND HISTORICAL BACKGROUND
From the beginning, monarchs always made their own rules and applied them according to their whims and fancies. Public was being threatened, so they may not raise their voice against the arbitrariness of the head. For every such act, there was no scope to create accountability of state. This concept of absolute immunity shrank with the development of human rights and ideas of a democratic and welfare state. Sovereign Immunity, which means no person can approach the judiciary against a wrong done by state officials while performing sovereign function, that is, act carried out in consonance with power conferred by the law, has always been an excuse to justify the wrongful acts of the officials. This notion of sovereign immunity is rooted in principle that king cannot commit any wrong, so he cannot be held accountable for any improper act.
This immunity of state was primarily seen in feudalistic system, and following reasons were cited to justify it:
i. If the state has provided certain public rights, then how can it violate these rights?
ii. If the state is sued for the wrong done, it would suggest that it has done it and authorized others (general public) to commit such wrong.
iii. State functioning is not like private entities and does not derive any profit, but works for the public good.
iv. Suing the state by every private individual may hinder the state's ordinary functioning.
But, as India became a colonial state, it was necessary to create accountability for the East India Company for its wrongful acts. The liability was created for the first time in landmark authority, Peninsular and Oriental Steam Navigation Co. In this case, Sir Peacock C.J. held East India Company liable for acts performed in its non-sovereign power, which means that the company would be liable for commercial wrongs and wrongs performed in personal capacity. (Pandey, 2022)
As Constitution of India was enacted, Article 300 was incorporated, which fixes states as follows:
“The Government of India may sue and be sued by the name of the Union of India and Government of a state may sue or be sued by the name of the state and may, subject to any provisions which may be made by Act of Parliament or Legislature of such state enacted by powers conferred by this constitution, sue or be sued with their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian states might have sued or been sued, if this constitution had not been enacted.” (J.N.Pandey, 2018)
Thus, the government may be sued like an ordinary person before the court after enactment of constitution. Further, section 79 Code of Civil Procedure 1908 provides- in any civil suit Government may be a plaintiff and be made a defendant.
II. What is Sovereign and Non-Sovereign function of a state?
Penninsular and Oriental Steam Navigation Co. Case 1861 is a leading authority for the same, which Supreme Court of Calcutta authored at that time. In present case, plaintiff was travelling in a carriage driven by two horses. When he was passing through the dockyards, the servants of Dockyards carried the long iron rods while walking in the middle of the road. Instead of being asked to find a way to get the carriage, the servants ignored the request and threw the heavy rods into the streets. This noise of rods frightened the horses, and they rushed here and there, eventually making the plaintiff fall. Thereby, he and his horses sustained severe injury. He brought an action against the state for damages accrued by recklessness and worker negligence.
Decision of the case-
Secretary was made responsible for injury caused to plaintiff due to negligent act of its servants since the act was not carried out to exercise its autonomous function. Court distinguished between “sovereign” & “non-sovereign” functions. When any act done by state may also be done by any individual in his capacity without any specific delegation of powers from the state, then it shall be a non-sovereign function. Maintenance of dockyard has nothing to do with sovereign acts such as maintenance of public order and law, carrying out a specific act which was authorized to be done by law, to defend the nation, or any other act as delegated by statute which requires a particular delegation.
Journey of shrinking the scope of sovereign immunity:
In State of Rajasthan v. Vidyawati 1962 AIR 933 - state was held accountable for improper actions of driver since jeep caused the death due to rash driving of driver. Court reasoned that driving a jeep for the collector does not require any specific delegation from state. If any private individual drives “rashly and negligently,” he would be liable; then why can't he do so? C.J. Sinha said, “Rule of sovereign function seems to have no applicability in India after enactment of the constitution. India has a ‘Republican’ and ‘Socialist’ form of government, and its primary aim is to secure a welfare state and safeguard its citizens' rights. The state enjoys no immunity in a democratic country since the real power vests within the people of India. The idea of republic state clearly provides that there is no kingship in the state and it shall be responsible for its work towards the citizens of India, within which real power lies.” (R.k.Bangia, 2023)
However, in Kasturi Lal v. State of Uttar Pradesh 1965 SC court didn’t hold state responsible for wrongdoing of its police officer, who himself was responsible for the safekeeping of the plaintiff's gold of plaintiff. Still, he appropriated that gold for himself from the Malkhana and later fled to Pakistan. Court held that act of police officer to arrest the plaintiff and to seize his gold was in exercise of powers delegated, which falls within the purview of an autonomous act of the state.
Many jurists criticized this judgment of Supreme Court, and it was not followed in the upcoming cases, whereas vicarious liability of state was in question.
Whereas any fundamental right and personal liberty was in question, court refrained from following the traditional sovereign immunity approach given in steam Navigation case. Instead, it has held the state responsible where the fundamental rights and personal liberty have been deprived due to the action of state officials.
In Rudal Shah v. State of Bihar 1983 SC petitioner was kept illegally in jail for 14 yrs even after his acquittal. So writ of ‘Habeas Corpus’ was issued under Article 32 of Constitution for his immediate release. Due to gross negligent behavior of officer personal liberty of the petitioner was curtailed; hence, state was made responsible for actions of its officials. Court passed a compensation order of amount of Rs. 30000 in favor of petitioner to be paid by the state. (Dhirajlal, 2023)
P.U.C.L. v. Police commissioners, Delhi Headquarters 1989 SC and Saheli v. Commissioner of Police 1990 SC both of these cases deal with custodial torture and custodial death of a child, respectively. In both these cases, court ignored decision of Kasturi Lal case and held state accountable for wrongs of police and ordered state to pay compensation. (Dhirajlal, 2023)
In Nilabati Behera v. State of Orissa 1993 SCR (2) 581, compensation was awarded to mother of 22year-old child whose death was caused in police custody. J. Verma held that, “If the state officials violate fundamental rights of a person, principle of strict liability shall be followed and the rule of sovereign immunity does not apply in such circumstances where violation of fundamental rights is in question, no matter that sovereign act is a defence in law of torts. The distinction between sovereign and non-sovereign acts only applies concerning the law of torts. The state cannot run away from the liability for the arbitrary actions of its servants by putting the shield of sovereign immunity.” (Pandey, 2022)
In Nagendra Rao Co. Vs State of Andhra Pradesh 1994 SC (R.k.Bangia, 2023), the Apex Court almost obliterated the decision given in Kasturi. The question involved in this case was virtually similar to that in Kasturi Lal case. The Plaintiff carrying a fertilizer business under the license issued by concerned authority. Police officer conducted a raid in his factory and seized his fertilizer. Later, when he was found not guilty, he demanded his fertilizer, which was spoiled. He sued the state for claiming the amount of that fertilizer, which was ruined due to the negligence of its officials.
The apex court granted him the claimed amount as compensation and observed. “In a welfare state where the government carries out all functions, the distinction between sovereign and non-sovereign functions is no longer relevant. No civilized society can allow an executive to manipulate its citizens and to assert its sovereignty by acting however it desires.” (R.k.Bangia, 2023)
Again in ‘Common cause, a Regd. Society v. Union of India 1999 SC’ (R.k.Bangia, 2023) the Court abstained from following the ruling of Kasturi Lal’s case and observed that the state cannot defend sovereign function when it is involved in any commercial activity, working as a private individual or its servants are guilty of infringement of citizens fundamental rights.
III. CONCLUSION
Doctrine of sovereign immunity given by the Supreme Court of Calcutta in 1861 is too old & outdated. The entire concept of state and its working has been modified now, where we have moved from ‘colonial state’ to ‘welfare state’. Scope of its liability cannot be limited to some non-sovereign acts like an individual; instead, it has widened to include every possible act required for the people's welfare. It is more likely to shift towards societal interest and must be changed accordingly. As rightly said by the Svigny, “Law grows with the growth of society and keeps on evolving, and it dies as the nation loses its nationality.” Law Commission in 1956 recommended removing doctrine of sovereign immunity, and for same, a bill was introduced in 1956, viz. “Government (Liability in Torts) Bill, 1956” could not be passed. With the increasing complexity of state officials’ work, it is a need of hour that an enactment must be made to regulate and define the liabilities of government and its officials for the various wrongs committed by them.
References:
1. Dr. J.N. Pandey, ‘Law of Torts with Consumer Protection Act and Motor Vehicles Act’ (9th edn reprient 2014)
2. Prof. G.S. Pande, ‘Law of Torts’ (9th edn Educational Printed 2022)
4. https://lawctopus.com/clatalogue/clat-pg/notes-on-tortious-liability-of-state/
5. https://blog.ipleaders.in/limits-sovereign-immunity/
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