LIABILITY :- Liability of the Government
Tortuous liability of the State: Position in India
Liability of the Government in tort is governed by the principles of public law inherited from English Common Law and the provisions of the Constitution. The Constitution of India deals with the extent of liability of the Union of India and the Government of a State under Article 300.
According to old England, law King can do no wrong. Even if he does it was not wrong. State was not liable for the torts committed by its servants. This kind of protection is called sovereign immunity. The wrongdoer was personally liable but not state. According to new England Law, The Crown Proceedings Act, 1947 had changed the position and now the State is liable for the tort committed by its servants just like private individuals. It is based on principle qui facit per alium facit per se' which means he who does an act through another does it himself.
Tortuous liability of the State: Position in India
According to Article 300 of the Constitution of India, the State or Government is liable for the torts committed by its servants. This is known as 'vicarious liability. The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued in the name of the State Legislature. Therefore the State is liable to pay compensation for its torts.
Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR Appl 1, the servant of P&OSN Co. was driving a horse carriage on a highway in Calcutta. The Government servants were carrying a long iron chimney (the funnel) across the road. One ofthe horses was injured due to the negligence of Government servants, The State was held liable for pay compensation. Chief Justice Peacock further held that for sovereign functions State is not liable. For non-sovereign functions State is liable.
Vidyawati v. Lokumal, AIR 1957 Raj. 305, Husband of Vidyawati died due to rash and negligent driving of a Government jeep was a non-sovereign function. Hence, the State was held liable.
State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the Plaintiff husband died in the accident caused by collector's jeep on its return from workshop after repair. The High Court held that the State was liable. Because returning from workshop was a non-sovereign function it has been observed that the State should not claim immunity from liability in the welfare state.
State of Orissa v. Padmalochan, AIR 1975 Orissa 41, Lathi charge by police caused injured the Plaintiff Court held that lathi charge was 'sovereign function' and State was not liable.
Kasturilal v. State of U.P, AIR 1965 SC 1039, In Meerut police arrested Kasturilal, a Gold business man the 103 tulas of 2 mainds with his gold and silver wrongfully on mere suspicion. The Gold was kept in police locker under the charge of Mohamrna Amir, a head constable. The head constable had stolen the gold and went to Pakistan. It has been held that the State was not liable because 'custody of property in the police station was a sovereign function. Therefore, Government was not responsible.
Pagadala Narasimham v. The Commissioner and Special officer, Nellore Municipality, AIR 1994 AP 21, Plaintiff's bus was wrongly parked. Traffic police and servants of Municipality removed it. It has been held that 'removal of wrongly parked vehicle' was a sovereign function and therefore State was
Rudul Shah v. State of Bihar, AIR 1983 SC 1086, Rudul shah was acquitted in 1968 but he was wrongfully detained in the jail for 14 years. Supreme in ordered for immediate release and awarded compensation of Rs. 35.000. State was held liable.
Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513, the police ed the death of9 years old Naresh. Saheli, a Women's Resource Centre Aled a writ petition. Supreme Court awarded Rs. 75,000 to the mother of the Child. Thus, the State was held liable
Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, Bhim Sinch, an MLA was wrongfully detained by police. He could not attend the assembly session. Court awarded Rs. 50,000 as compensation.
N. Nagendra Rao & Co. State of AP (1994) 6 SCC 205 It has been held that the State was liable vicariously for the negligence committed by its officers in the discharge of pubic duty conferred on them under a Statute. The State cannot claim any immunity during the functions of constitutional Government.
State of AP v. Challa Ramakrishna Reddy, AIR 2000 SC 2083, This case is popularly known as 'prisoner's murder case'. A prisoner informed the authorities of the jail about the apprehended danger to his life, but the authorities on this information took no action. No measures were taken for his safety and he was killed in the prison. It has been held that in the case of violation of fundamental rights, the defense of Sovereign Immunity couldn't be accepted. Therefore, the Government and the police are liable to pay compensation.
The rule of liability of the State for torts in the P&O Steam Navigation's case is very out-model and not suitable for the modern age. When the activities of the State have vastly and rapidly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State. Therefore, the liability of the State should accordingly be made coextensive with its modern role of a welfare State.