The Common Law maxim “Rex Non-Potest Peccare” (The King can do no wrong) and the rule that the Crown was not answerable for the torts committed by its servants hold no good in the Indian system of governance. The democratic and federal structure develops interaction between the State and the citizens of India, may it be in the form of trading with government companies, or interacting with the public authorities such as the police, or the bureaucrats, etc. and this interaction makes it crucial that the State should be made liable for the acts of its officers, committed in the course of conduct which may cause harm to any of the citizens.
In the Supreme Court of India
|Name of the Case||Kasturi Lal Ralia Ram Jain v. The State Of Uttar Pradesh|
|Citation||1965 AIR 1039, 1965 SCR (1) 375|
|Year of the Case||1964|
|Appellant||Kasturilal Ralia Ram Jain|
|Respondent||The State of Uttar Pradesh|
|Bench/Judges||Gajendragadkar, P.B. (Cj); Wanchoo, K.N.; Hidayatullah, M.; Dayal, Raghubar; Mudholkar, J.R.|
|Acts Involved||The Constitution of India, 1950, Art. 300(1)-State Liability for tortious acts of its servants|
In the pre-independence period, the liability of the State was a disputed and unsettled question for the courts. The viewpoint of the Judiciary in India on the liability of the State for the acts or omission of its servants has never been constant and hence, changing according to the altering needs of times.Common law, crown, rex non-protest peccare, torts, the liability of the state.
This judgment is one of the debated and landmark judgments of all times in the area of tortious liability of the state for the acts done by its servants. In this case, the police officers seized the silver and gold of a trader while traveling going to sell the same in the market. They took him as well as the materials in their custody. But they were negligent in keeping it safely; hence the gold got misappropriated by one of the officers. Thus he filed a case against the state authorities for the negligence of police officers. The trial court made the state liable but the High Court reversed its decision and thus, an appeal was filed under the civil appellate jurisdiction of the Supreme Court to consider the question of law involved in this case. The Apex Court while distinguishing sovereign and non-sovereign functions of the state discussed at length the precedents and the stance of Privy Council and courts in the British Era on this issue. The case of P&O Steam Navigation Co. v. The Secretary of State for India  was approved and the case, State of Rajasthan v. Must. Vidhyawati and another was distinguished from the present case. The court also suggested the passing of legislative enactments to regulate and control the liability of the State for the negligent acts of its servants. The subject of the case discusses the Vicarious liability of the state for the negligent acts committed by its officials. Similarly, the object is that it distinguishes between Sovereign and Non-sovereign immunity which is based on the criteria of determining that which cases fall under the functions performed under the authority of the state or delegated by a statute that is sovereign functions attracting immunity for the state from liability and the acts that are non-sovereign, that is which does not come under the purview of state authority.
Background of the case
Tort law in India is a result of the creation of precedents and the common law existent. It is not codified as such.
Development of vicarious liability of the state:
The journey of Article 300 can be traced back to The Government of India Act, 1858, which was the parent source of the law relating to the liability of the Government. Section 65 of the said Act is as follows:
“The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies, and proceedings. legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company.”
Article 300 of the Constitution originated from Section 176 of the Government of India Act, 1935. Under this section, the liability was coextensive with that of Secretary of State for India. The Government of India Act, 1915, in turn, made it coextensive with that of the East India Company.
Application of the concept in India
The first decision which is treated as a leading authority on the subject and object of the present case was pronounced by the Supreme Court at Calcutta in 1861 in the case of the Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India – a judgment pronounced by Chief Justice Peacock.
“This case recognized the material distinction between acts committed by the servants employed by the State where such acts refer to the exercise of sovereign powers delegated to public servants and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which refer to and based on the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such a tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him, not by the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during his employment is an act of a servant who might have been employed by a private individual for the purpose. This distinction is sometimes not borne in mind while discussing questions of the State’s liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasized by Chief Justice Peacock as early as 1861 has been recognized as a classic statement on this subject.”
Thus the Supreme Court here in Kasturilal Ralia Ram Jain v. The State Of Uttar Pradesh has followed the rule laid down in P.S.O. Steam Navigation case by distinguishing Sovereign and non-Sovereign functions of the state and held that the act of police officers is a Sovereign act, therefore the State is not liable.
But various Courts in coming years limited the immunity of State by holding more and more functions of the State as non-Sovereign giving a liberal interpretation of this doctrine.
To ensure the protection and personal liberty of individuals from abuse of public power, the Apex court created a new remedy to grant damages through writ petitions under Article 32 and Article 226 of the Constitution. In the case of Rudal Shah v. State of Bihar, the Supreme Court awarded damages for the very first time on account of custodial torture committed by public servants.
In Bhim Singh v. the State of Rajasthan, the principle laid down in Rudal Shah was followed and further extended to cover cases of unlawful detention. In this case, a petition under Article 32 was filed in which the Apex court awarded Rs. 50,000 by way of compensation for wrongful arrest and detention.
The courts in successive cases continued narrowing down the scope of sovereign immunity, rather than attempting an express overruling of Kasturilal. Finally, in the case of the State of Andhra Pradesh v. Challa Ramakrishna Reddy, the court explicitly expressed disapproval of the principle laid down in the Kasturilal Case. The apex court indicated that the distinction between Sovereign and non-Sovereign powers has no relevance in the present times and the doctrine of Sovereign immunity is no longer valid.
In the above case, the High Court had held that since the negligence which led to the incident was both unlawful and opposed to Article 21, and that since the statutory concept of sovereign immunity could not override the constitutional provisions, the claim for violation of fundamental rights could not be violated by statutory immunities. On an appeal made by the State, the Supreme Court dismissed the appeal and ruled: “The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act following the provisions of the Constitution and would be answerable to the people for any violation thereof.”
Thus, the ratio of this case was that sovereign immunity, which is a statutory justification, cannot be applied in case of violation of fundamental rights, because statutory provisions cannot override constitutional provisions. The procedural aspect of this was that aggrieved persons can successfully file their petitions in trial courts for tortious acts committed by State, and there is no need to approach High Court or Supreme Court under Articles 226 or 32. However, the court in this case even while holding that Kasturilal’s case had lost significance and was no longer of binding value, did not consider the cases where no fundamental rights but other legal rights might be violated. The question that arises is whether, in violation of such statutory rights, sovereign immunity can be effectively claimed. This issue can be decided only by a Constitutional bench of seven or more judges if the need arises to overrule the Kasturi Lal case.
Consequently, there has been an expansion in the area of governmental liability in torts.
Ralia Ram was one of its partners of a firm which dealt in bullion and other goods at Amritsar. It was duly registered under the Indian Partnership Act. On the 20th of September, 1947 Ralia Ram arrived at Meerut by the Frontier Mail to sell gold, silver, and other goods in the Meerut market. Whilst he was passing through the Chaupla Bazaar with this object, he was taken into custody by three police constables. His belongings were then searched and he was taken to the Kotwali Police Station. He was detained in the police lock-up there and his belongings were seized from him and kept in police custody. Then he was released on bail, and sometime thereafter the silver seized from him was returned to him. Ralia Ram made repeated demands for the return of the gold but he could not recover the gold from the police officers, he filed the present suit against the respondent in which he claimed a decree that the gold seized from him should either be returned to him or in the alternative, its value should be ordered to be paid to him. The alternative claim thus made by him consisted of Rs. 11,075-10-0 as the price of the gold and Rs. 355 as interest by way of damages as well as future interest.
It was urged by the respondents that they were not liable to return either the gold, or to pay its money value as the gold in question had been taken into custody by one Mohammad Amir, who was then the Head Constable, and it had been kept in the police Malkhana under his charge. Mohd. Amir, however, misappropriated the gold and fled away to Pakistan soon thereafter. He had also misappropriated some other cash and articles deposited in the Malkhana before he left India. The respondent further alleged that a case under section 409 of the Indian Penal Code as well as s. 29 of the Police Act had been registered against Mohd. Amir, but he had not been apprehended. Alternatively, it was pleaded by the respondent that this was not a case of negligence of the police officers and that even if negligence was held proved against the said police officers, the respondent State could not be said to be liable for the loss resulting from such negligence.
The trial court gave judgment in favor of the appellant and since the gold in question could not be ordered to be returned to the appellant, a decree was passed in its favor for Rs. 11,430-10-0.
The respondent challenged the correctness of this decree by an appeal before the Allahabad High Court and it was urged on its behalf that the trial Court was in error regarding both the findings recorded by it in favor of the appellant. These pleas have been upheld by the High Court. It was found that no negligence had been established against the police officers in question and that even if it was assumed that the police officers were negligent and their negligence led to the loss of gold, that would not justify the appellant’s claim for a money decree against the respondent. The appellant then moved to the Supreme Court by an appeal. They urged that the High Court was in error in both the findings recorded by it in favor of the respondent. The first finding is one of fact and the second is one of law.
Two substantial questions arose between the parties:
- One was the question of finding whether the police officers in question were guilty of negligence in the matter of taking care of the gold which had been seized from Ralia Ram.
- And the second was the question of law that whether the respondent, State of Uttar Pradesh should be held liable to compensate the appellant for the loss caused to it by the negligence of the public servants employed by the respondent.
The related provision of law involved in the present case is
Article 300 of the Constitution of India states that:
- 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 by the name of the State and may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by powers conferred by this Constitution, sue or be sued concerning 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.
- If at the commencement of this Constitution –
i) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
ii) Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.
In the present case, the appellants took the support of the principle recognized by this Court in State of Rajasthan v. Mst. Vidhyawati and Anr. In that case, the respondents, that are, husband and father of minor had been knocked down by a Government jeep car which was rashly and negligently driven by an employee of the State of Rajasthan. The said car was being taken from the repair shop to the Collector’s residence and was meant for the Collector’s use. A claim was then made by the respondents for damages against the State of Rajasthan and the said claim was allowed by this Court. In upholding the decision of the High Court which had granted the claim, this Court observed that the liability of the State for damages in respect of a tortious act committed by its servant within the scope of his employment and functioning as such was the same as that of any other employer. In support of this conclusion, the court said that the immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely that the King was incapable of doing a wrong, and, therefore he could not be sued in his courts. Such a notion was inconsistent with the Republican form of Government in our country, particularly because in pursuit of their welfare and socialistic objectives, States in India undertook various industrial and other activities and had to employ a large army of servants. Thus, there would be no justification that why the State should not be held liable vicariously for the tortious acts of its servants. It is, on these observations that Mr. M. S. K. Sastri relied on and contended that the said observations as well as the decision itself can be, easily extended and applied to the facts in the present case. 
- The court while giving its judgment considered the following decisions upholding the side of respondents
In Shivabhajan Durgaprasad v. Secretary of State for India, this point arose for the decision of the Bombay High Court. The High Court ruled in the favour of defendants on the ground that the chief constable seized the goods not in obedience to an order of the executive Government but performance of a statutory power vested in him by the Legislature. The principle on which this decision was based was stated to be that where the duty to be performed is imposed by law and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment.
In the Secretary of State for India in Council v. A. Cockcraft & Anr., the plaintiff sustained injuries in a carriage accident which was alleged to have been due to the negligent stacking of gravel on a military road maintained by the Public ‘Works Department of the Government and a claim for damages had arisen against the Secretary of State. The Madras High Court held that the plaintiff had in law no cause of action against the Secretary of State for India in Council in respect of acts done by the East India Company in the exercise of its sovereign powers as the provision and maintenance of roads, especially a military road, is one of the functions of Government carried on in the exercise of its sovereign powers and is not an undertaking which might have been carried on by private persons.
In the Secretary of State for India in Council v. Shreegobinda Chaudhuri , it was held by the Calcutta High Court that a suit for damages does not lie against the Secretary of State for India in Council for misfeasance, wrongs, negligence or omissions of duties of managers appointed by the Court of Wards, because the acts giving rise to the claim, were done by officers of Government in the course of the exercise of powers which cannot be lawfully exercised save by the sovereign power. Rankin C.J. enunciated the principle that no action in tort lies against the Secretary of State for India in Council upon the ‘respondent superior’ and that a suit may lie against the Secretary of State for India in Council for torts committed by the Government in connection with a private undertaking or an undertaking not in the exercise of sovereign power
The same view has been taken by the Allahabad High Court in Mohammad Murad Ibrahim Khan & Anr. v. Government of the United Provinces.
In the case of Uma Parshad v. The Secretary of State, a certain property that had been stolen from the plaintiff was recovered by the police and was thereafter kept in the Malkhana under orders of the Magistrate during the trial of the thieves. The receiver, man in charge of the Malkhana, absconded with it. That led to a suit by the plaintiff for the recovery of the property, or in the alternative, for its price. The Lahore High Court held that the liability in the case having arisen under the provisions of the Criminal Procedure Code, the defense plea that the act was an act of State could not succeed. Even so, the Court concluded that the Secretary of State could be held liable only under circumstances in which a private employer can be rendered liable.
The Supreme Court in the present case, after considering all the evidence and appeals rose from the side of appellants, observed that “The powers to arrest a person, to search him, to seize property found with him, are powers conferred on specified officers by statute and are powers which could be properly characterized as sovereign powers. Therefore, though the negligent act was committed by the employees of the respondent-State during their employment, the claim against the State could not be sustained, because, the employment in question was of the category which could claim the special characteristic of sovereign power.”
Further justifying the reasons given by the High Court in the decision said that on the basis that the act which gave rise to the claim for damages had been done by a public servant who was authorized by a statute to exercise his powers, and the discharge of the said function can be referred to the delegation of the sovereign power of the State, and as such the criminal act which gave rise to the action, could not validly sustain a claim for damages against the State. It will thus be clear that the basic principle enunciated by Peacock C. J. in 1861 has been consistently followed by judicial decisions in dealing with the question about the State’s liability in respect of negligent or tortious acts committed by public servants employed by the State.
Recalling the decision in the Vidhyawati case, this court stated that, in dealing with such cases, it must be borne in mind that when the State pleads immunity against claims damages resulting from injury caused by negligent acts of its servants, the area of employment referable to sovereign powers must be strictly determined. Before such a plea is upheld, the Court must always find that the impugned act was committed in the course of an undertaking or employment which is referable to the exercise of sovereign power or the exercise of delegated sovereign power; and in the Vidhyawati case, the alleged actions could not claim such a status. The employment of a driver to drive the jeep car for the use of a civil servant is itself an activity that is not connected in any manner with the sovereign power of the State at all. That is the basis on which the decision must be deemed to have been founded; and it is this basis which is absent in the case before us.
Taking a narrow view of the basis on which the area of the state immunity against such claims must be limited, the court observed that “The Governments of the States, as well as the Government of India, naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of Governmental activities in which the exercise of sovereign power is involved. It is necessary to limit the area of these affairs of the State about the exercise of sovereign power so that if acts are committed by Government employees about other activities which may be conveniently described as non- governmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State”
The concepts of Sovereign Immunity and Non-Sovereign Immunity were discussed in the above case. Including the doctrine of Vicarious Liability of the State was considered and the constitutional provisions which developed ahead.
Sovereign and non-sovereign functions
A sovereign function is defined as a function that is performed exclusively by the government, its officials or public servants under the sovereign powers of the state or refers to functions authorized by a statute. Examples of this kind are functions of the army, powers enjoyed by police under the police act. Non-sovereign functions include functions that are performed by private entities as well.
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In constitutional monarchies, the sovereign is the source of all power and the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.
Constitutional provisions: In India, Article 300 of the Constitution of India, 1950, specifies the liability of the Union or the State concerning an act of the Government. The concept of Article 300 can be highlighted in three parts:
The first part deals with the question about the form and the cause title for a suit intended to be filed by or against the Government of India, or the Government of a State.
The second part provides, inter alia, that a State may sue or be sued concerning its affairs in cases like those in which a corresponding Province might have sued or been sued if the Constitution had not been enacted. In other words, when a question arises as to whether a suit can be filed against the Government of a State, the inquiry has to be: could such a suit have been filed against a corresponding Province if the Constitution had not been passed?
The third part of the article provides that it would be competent to the Parliament or the Legislature of a State to make appropriate provisions regarding the topic covered by Art. 300 (1). Since no such law has been passed by the respondent in the present case, the question as to whether the respondent is liable to be sued for damages at the instance of the appellant has to be determined by reference to another question and that is, whether such a suit would have been competing against the corresponding Province.
The Doctrine of Vicarious liability of the State
The principle of vicarious liability of the state was used in the present case. It is a legal doctrine that assigns liability to the master for an injury to a person, though he did not cause the injury but has a particular relationship to the servant who did act negligently. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. Vicarious Liability of the State for the torts committed by its servants is based on three principles:
Respondent superior (let the principal be liable.)
This means that a master is responsible for want of care on servant’s part for negligent acts or omissions towards those to whom master owes a duty to use care, provided failure of the servant to use such care occurred in course of his employment. For an act to be considered within the course of employment, it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.
Qui facit per alium facit per se (he who acts through another does it himself).
It is a fundamental maxim of the law of agency. This is a maxim often stated in discussing the liability of an employer for the act of an employee.
Socialisation of Compensation.
It is a fundamental maxim of the law of agency. This is a maxim often stated in discussing the liability of an employer for the act of an employee.
The justifications which initially existed for sovereign immunity are no longer valid in today’s society. Sovereign immunity contradicts the essence of the law of torts that liability follows negligence and that masters and sovereign are responsible for the negligence of their officials and servants acting in the course of their employment. The law of Torts and Constitutional Jurisprudence is not limited to the framed doctrines; instead, they are constantly developing based on societal needs. In a country like India where democratic regime prevails, the voice and the demand of the people is given considerable weightage and the welfare notion succeeds the orthodox sovereign immunity doctrine. Thus the court has to be cautious regarding the public opinion and present trends while dealing with such cases.
-  P&O Steam Navigation Co. v. The Secretary of State for India, (1868-69) 5 Bom. H.C.R. App. A. 1.
-  State of Rajasthan v. Mst.Vidhyawati and another,  Supp. 2 S.C.R. 989.
-  Rudal Shah v. the State Of Bihar And Another,1983 AIR 1086, 1983 SCR (3) 508.
-  “Sovereign Immunity: No Defence in Private Law”, Amardeep Garje, available at http://ssrn.com/abstract=1347948
-  Ibid
-  Shivabhajan Durgaprasad v. Secretary of State for India, (1904) ILR 28 Bom 314
-  Secretary of State for India in Council v. A. Cockcraft & Anr, (1914) I.L.R. 39 Mad. 351.
-  Secretary of State for India in Council v. Shreegobinda Chaudhuri, (1932) I.L.R. 59 Cal. 1289.
-  Mohammad Murad Ibrahim Khan & Anr. v. Government of United Provinces, I.L.R.  1. All. 94.
-  Uma Parshad v. The Secretary of State, (1936) I.L.R. 18 Lah. 380.
-  https://indiankanoon.org/doc/1199558/.