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LIABILITY OF GOVERNMENT IN TORTS
INTRODUCTION:
Today the government has actively participated in the state for welfare of the people and service activities, but on the other hand the concept of governmental liability may have a chilling effect on such participation. Liability is imposed on the governmental power. Here government also includes administration as well as state. The apprehension that the concept of officer’s liability may dampen the independence and initiative of the officers but in the recent trend shows a judicious mix of both liabilities that is state as well as individual. Tort means a civil wrong that has been committed that have led to damages being caused to the Victim. Tortious liability of a Government means a Situation where the Government is to be held liable for a civil wrong committed by any official working for the Government or the State in a whole, against an individual that has resulted in Violation of his Fundamental Rights. The act of a State where the acts have been committed by one sovereign against another sovereign or any other alien body or territory. There is immunity from courts’ interference. In respect of an act. This work manifests the government liability towards their citizens for the acts done by employee. This liability state about obligation to pay compensation to the victim which is cause by the employee. Article 12 of the Constitution of India defines a “State" as, “In this Part. Unless the context otherwise requireres. “The State” Includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. This definition In Art 12 Is only for the purpose of application of the provisions contained in Part. lll Hence, even though a body of persons may not constituteute ‘State‘ within the “instant definition. a writ under Art 226 may lie against It on non-constitutional grounds or on ground of contravention of some provision of the Constitution outside Part III, i.e, where such a body has a pubic duty to perform or where its acts are supported by the State or public officials. 1 (^1) Kartick vs. W.B.S.I.C., AIR 1967Cal231 (234).
A state need not necessarily be a body governed by a government which has uniform and codified laws. Institution like Schools. Corporate, institutions and the Government Itself also form a part of the definition of a State as provided In Art. l2. The Supreme Court ‘has held that the word “Includes" Indicates that the definition of “State" is not confined to a Government Department and the Legislature, but extends to any action administrative (whether statutory or non-statutory) judicial or quasi judicial" ~which can be brought within the fold of ‘State action’ and violate a fundamental right. The words “State” and “Authority” used In Art. I2, remain among “the great generalities of me Constitutions" the content of which has been and continues to be applied by Courts from time to time. Thus it includes all constitutional or statutory authorities on whom power are conferred by law‘, including even autonomous bodies ‘whether they are under the control of the Government or may be regarded as agents or delegates of the Government or not. Local authorities are under the exclusive control of the States. By Virtue of entry 5 of List II of the 7“Schedule. That entry contains a list of some local authorities. A ‘Local authorities.’ Local authority is defined in section 3(3l) of the General Clauses Act X of "1897" as follows ‘Local authority’. Shall mean a municipal committee. District board body of port commissioner or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local find. 'Thiss expression will therefore Include a Municipal Commette", a Panchayat” and a Port Trust“, Municipality is a “State “for the purpose of this Article" and local or other authorities may be a ‘State ‘too within the meaning of Art. 12. but that does not mean tint the authorise are State Government or Central Government as there is distinction between “Slate "and “Government. 2 ‘Other authorities’ refer to authorities other than those of local and self-Government, who have power to make rules, regulations etc., laying the force of a law. In view of the Supreme Court‘s decision In Rajasthan Slate Electricity Board v. Mohan La!" there is no common genus in Art. 12 and that. accordingly, this expression ‘other authorities‘ cannot be construed ejusdem generis With the authorities specifically mentioned, it is now clear that in order to be ‘State‘ an authority need not necessarily exercise governmental functions or constitute an Instrumentality of the (^2) Natwarlal Khodidas Parmar vs. Dist. Panchayat, Jamanagar, AIR 1990 Guj 142
(a) Authorities situate within the territory of India. These need not be under: the control of India In order to be deemed ‘State ‘under Art l2. (b) Authorities situate outside the territory of India (e.g, territories administrated by india under the Foreign Jurisdiction Act. 1947), these will come within the purview of Art. I2 only If they are under the control of India. PRINCIPLE OF VICARIOUS LIABILITY^7 Vicarious liability is a concept of tort law meaning the liability to be borne by one person for the acts committed by another person. The principle of vicarious liability only in certain cases and where a relationship has been established between the two persons. These relationship are mainly categorized in three parts: (a) Principal and Agent, (b) partners, and (c) Master and Servant. The Liability of the principal arises when his agent commits a tort In the course of performance of his duty as an agent and hence they are considered to be Joint tortfeasors since their liability is joint and several. When the wrongful act is done by one partner in the ordinary course of the business of the firm, all the other partners are vicariously Liable for the same. Their liability is also joint and several and the plaintiff' can choose to sue either one of the partners or the entire firm for the tort committed by the guilty partner. The same rule applies in the ease of master- servant relationship where the master ls vicariously liable for the wrongful act done by his servant in the course of employment. The principle of vicarious liability underlines one very important concept. It states that in the case of a principal agent, partners, or a master servant relationship. the principal, all of the partners, and the master, respectively, can only be sued If the agent, the guilty partner and the servant commit the wrongful act during the course of their employment In the case of Trilok Singh v. Kailash Bharti",^8 while the owner of the motor cycle was outside the country, hrs younger brother took the motor cycle without hrs knowledge or permission and caused the accident. It was held that the younger brother could not be deemed to be the agent of the owner of the motor cycle and the latter could not be vicariously liable for the accident. (^7) Law of Torts by Dr. R. K. Bangia pg (105), Administrative Law by I. P. Massey, pg (458) C. K. Taiwan (455) and H.W.R. Wade &C.F. Forsyth pg (642) (^8) 1986 ACJ 757 (P&H)
In the case when a state is to be held liable for the act committed by its employees and officials, Art. 300 of the Constitution should be "referred Art 300 of the Constitution of the India as under: Art. 300 ( I) The Government of India may sue and be sued by the name of Union of Indra 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 Stale enacted by virtue of power conferred by this Constitution, sue or be sued in relation to their respective affairs in the like case: as the dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued If this Communal had not been enacted. (2) If at the commencement of the constitution- (a) Any legal proceeding are pending to which the Dominion of India Is a party. The Union of India shall be deemed to be substituted for the Dominion of those proceedings; and (b) any legal proceeding 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. No action lies against the Government for injury done to m individual in the course of exercise of sovereign functions of the Government. If the Government has been acting out of its own accord, and during such a course of fulfilment of the duty, it causes injury any individual, then the individual cannot be compensated for the damage done to him because, such an act was done as a sovereign function and injury to the individual was not cause to him during the course of his employment. An. 300 provides for Situations under which the Government of India can be sued after the commencement of the Constitution. It provides for the trial of those cases that are pending in the courts before and after Indian independence and admission and disposal of those cases under the name of Union of India. GOVERNMENTAL TORTIOUS LIABLITY a. Position in Foreign countries;
b. Position in India: 13
(I). pre-Constitution:
14 The extent of liability of the government for torts of its employees is defined by Art. 300( I) of the Constitution which declares inter alia that the Government of India, or of a State, may sue or be sued “in relation to 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 the Constitution had not been enacted. This is subject to any law made by the Parliament or the State Legislature S. I76 of the Government of India Act, I935, stated that the Dominion of India and the Provincial Government may sue or be sued In relation to their respective affairs in the like cases as the Secretary of State for India In Council might have sued or been sued if the Government of India Act of I935 had not been enacted. Thus, the liability of the Government was made co extensive with that of the Secretary of State for India under S. 32 of the Government of India Act, 1915, which in turn made it co-extensive with that of the East India Company prior to the Government of India Act, I958. S. 65 of this Act thus preserved against the government the same suits and proceedings which were then available against the East India Company. The Secretary of State for India in Council could be sued in all those cases in which the East India Company could be sued before 1858. By the Charter Act of I833, the Fast India Company came under the hold of the Government of India in trust for the British Crown. In I858, the Crown assumed sovereignty in India to take over the administration of India from the hands of the Company. Thus, from I765 to I858, the Company had a dual character: It was a trader and also exercised some sovereign powers. As the Company was an autonomous corporation, having an existence of its own, and bearing no relationship of servant or agent to the British Crown, the immunity enjoyed by the Crown was never extended to it. In a leading case arising under S. 65 of the Government of India Act, l858- Peninsular & Oriental Steam Navigation Company v. Secretary of State 15 was decided in I86l by the Calcutta Supreme Court, where the P. & 0. Made a claim for damages against the Secretary of State for injury to its horse caused on the highway became of the negligence of some workmen employed in the Government Kidder pore Dockyard to determine the liability of the government, the court (^13) C. K. Taiwan pg 457 (^14) C. K. Taiwan pg 458 (^15) 5 Bom HCR App.
posed the question whether the East India Company would have been made liable in such a Situation. After the Charter Act of I833, the Company was acting in a dual capacity in India as a merchant, as well as one exercising sovereign powers as a trustee of the Crown in respect of the territorial possessions acquired by it. The court pointed out that the fact that the Company exercised sovereign powers as a delegate of the Crown did not make it a sovereign. Therefore, the Crown Immunity could not extend to it. As to the scope of actual liability of the Company, the courts stated that where an act was done in exercise of ‘sovereign powers, no action would lie against it. The court further stated that if the Company were carrying on activities which would be carried on by private persons, the Company would be liable for torts of its servants committed during the course of such activities. Hence, no action would lie in the former case. The sovereign powers were defined as “powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them“. On the basis of this reasoning, the court held in the Instant case that the Company would have been liable for negligence of its servants in repairing a river steamer or thing any action in connection With such repairs. Thus, the Secretary of State was held liable. The P. & 0. Case thus laid down two propositions: (a) Apart from any special statutory provision, suits could have been brought against the East India Company and, consequently, against the Secretary of State as successor to the Company, in respect of acts done in the conduct of an undertaking which might be carried on by private individuals without sovereign powers. (b) The Secretary of State was not liable for anything done in the exercise of sovereign powers. Most of the cases cited in P. & O. as examples of sovereign functions are really cases pertaining to act of state. However ‘the distinction between the ‘sovereign ‘and ‘non sovereign‘functions is amorphous and unfocussed except when the court equals sovereign functions with acts of state in the present case. The P. & 0. Case was considered by the Madras High Court in the case of Secretary of Stale v. Hari Bhanji^16. The facts of the case, briefly stated, were that during the course of transit of salt from Bombay to Madras port, the rate of duty on salt as enhanced and the merchant was called (^16) 1882 ILR 5 Mad 273
In the case of Maharaja Bose v. Governor General in Council 20 , the Government was held liable for tortious action of a railway servant committed by him within the course of his employment as running of railways was held to be not in exercise of sovereign powers. Railways were held to be a “commercial undertaking, an undertaking which a private individual can equally well undertake, an undertaking not in exercise of sovereign powers.
- DEVELOPMENTS IN THE LAW: A. Transportation: A large number of cases have occurred pertaining to claims of damages against the State by individuals for injuries caused to them due to negligence of the drivers of the State transport. As stated by the Supreme Court in the case of State of Rajasthan v. Vidhyawati,^21 the State was held liable for the accident caused by the driver of a Jeep owned and maintained by the State for the official’s use of the collector. Similar are the Judgments of various High Courts and the Supreme Court in various cases concerning the state liability, in light of the Vidhyawati case. In the case of Annamalai v. Anitha kujambal 22 , a person was killed in an accident with a jeep driven by a government employee during the scope and course of his employment. Hence, the court held that the government was to be held liable to pay damages to the Widow of the deceased on the principle of vicarious liability for its servant's tortious act. As driving a jeep is a non-sovereign function, since any person can drive a jeep. B. Railways In the case of Chairman Railway Board v. Chandrima Das 23 , a Bangladeshi woman was gang raped by several railway employees in yatri niwas attached to a railway station. The court ruled that running of railways has been characterized as a commercial activity. Establishing yatri niwas at various railway stations to provide lodging and boarding facilities to passengers on payment of (^20) AIR 1952 Cal 242 (^21) AIR 1962 SC 933 (^22) AIR 1979 Mad 276 (^23) AIR 2000 SC 988
charges is regarded as a part of the commercial activity of the Government of India and such an activity cannot be equated with the exercise of sovereign power. C. Military Vehicles In several cases, the government has been held liable to pay compensation for injuries caused by negligent driving of military vehicles engaged in doing various odd Jobs. The test applied is not that a military vehicle was involved in an accident, but the purpose on which the vehicle was employed and whether that purpose could be characterised as ‘sovereign‘. If not the government would become vicariously liable for the torts of its servants. Similarly. in the case of Satyawati v. Union of India 24 , no ‘sovereign’ function was held to be discharged when a military vehicle carrying hockey and basketball teams to an Indian Air Force station to play matches against the Indian Air Force, met With an accident due to the negligence of the driver, and a person was killed and hence the state was not entitled to claim immunity for the tortious act of its employee. D. Government Hospitals: In the case of M. Vijaya v. Chairman and Managing Director, Singrani' Collieries Co. Ltd, 25 the appellant was awarded compensation by the court for negligent transfusion of HIV Infected blood in a government hospital. E. Tort against Property The government was held liable under the general principles of law of torts. In the case of State of Punjab v. Modern Cultivators^26 , where the plaintiff brought a suit for compensation against the State Government for the damage caused to his land and crops due to inundation as a result of breach in canal marinated by the government under the Northern India Canal and drainage Act, since the breach had been caused by the negligence of the government employees. F. Torts against Persons (^24) Union of India vs. P.S. Mahal AIR 1976 J&K 80 (^25) AIR 2001 AP 502 (^26) AIR 1965 SC
explained the basis on which the liability of the State arises in such cases like custodial death, police atrocities etc.) For payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action of tort. The award of compensation in a proceeding under Art. 32 or Art 226 of the Constitution is a remedy available in public law, “based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.
- STATUTORY FUNCTIONS OF OFFICIALS Formerly, the principle was followed that the state would not be vicariously liable for acts of its servants performed by them in pursuance of a power conferred on them by a statute. This was on the basis that the rule embodied in the maxim "respondent superior" is subject to the well recognised exception that a master is not liable for the acts of his servant performed in the discharge of a function conferred on him by law. As it was held in the case of Tobin v. The Queen 31 , where a function is conferred by law directly on the employee, the employer cannot be said to have legal control over him in the discharge of that function and, accordingly, the employer cannot be held liable for the wrongs committed by the employee during the course of discharging that function. In such a case the general law of agency has no application. However, the official himself may be personally liable for the torts he commits. Similarly, in the case of Ross v. Secretary of State^32 , the Secretary of State was held not liable for the wrongful acts of the district magistrate done by him in the exercise of statutory authority.
- NEGLIGENCE OF MUNICIPAL BODIES: Municipal bodies are statutory bodies discharging many functions of public interest. In a number of cases, the courts have held such bodies liable to pay compensation for the tortious acts of their servants. (^31) Stanbury vs. Exeter Corporation, 1905 2 KB 839 (^32) AIR 1915 Mad 434
In the case of Venkatesh v. The City Municipal Council 33 , where the municipality had demolished some buildings belonging to the plaintiff for the purpose of broadening a road without taking any action to acquire the buildings under the Land Acquisition Act, the court had awarded damages to the plaintiff to compensate him for the injury sustained by him for the tortious act of the municipality. A. Government Companies The government sets up a number of statutory corporations or bodies incorporated under the Companies Act. Most of these bodies are engaged in carrying commercial enterprises. Actions for damages against such bodies for tortious acts of their servants are not covered by Art. 300 of the Constitution and therefore the principles of the general law of torts are applicable to them to the same extent as to any corporate body. Thus, in National Small Scale Industries Corpn. v. Bishambhar Nath, 34 the corporation was held liable for the damage caused to the building of the respondent [of which the corporation was a tenant] due to the negligence of the employees of the corporation.
- NEGLIGENCE OF ELECTRIC UNDERTAKING: The courts have also awarded compensation for injuries or death caused to persons because of negligence of the statutory electricity boards to properly maintain electric installations. In the case of Kerla State Electricity Board v. Suresh Kumar 35 , where Rule 77(3) of the Indian Electricity Rules, 1956, which imposes a duty on the electricity board to hold ll KV overhead lines at a height of I5 feet above the ground, was violated, and instead the line in the instant case sagged to a height of 9 feet above the ground and a boy came in contact with the line sustained serious burns and injuries which affected his phial and mental capacities. The court ordered the board to pay a sum of Rs I,02,000 along With interest from the date of filing the suit by way of compensation to the plaintiff for the injuries suffered by him.
- NEGLIGENCE OF POST OFFICES: (^33) AIR 1975 Knt 62 (^34) AIR 1979 ALL 35 (^35) AIR1986 Ker 72
act of stale. Its legality and validity must be tested by the municipal law and in municipal courts. 39
CONCLUSION
The Preamble of the Constitution of India declares India to be a ‘sovereign. Socialist. secular. Democratic republic'. The word ‘sovereign‘emphasises that India is no more dependent on any outside authority. It is a sovereign, both internally and externally. So far as the Constitution of India is cemented, the king has no place and the country and the government owe no allegiance to him. This is not the position in England. Till the 1947, the Crown enjoyed immunity over the fact that they cannot be tried and charged for any wrong done by them or the government to the citizens during their course of employment or otherwise. The position was however changed in I947, where the new law declared all statutory corporations and the government to be held liable in cases where the employees have been damaged or hurt during their course of employment. And compensate them for the same. To prove the liability of those Institutions, It is necessary to prove them to be veraciously liable. The principle of vicarious liability means that the liability is to be borne by one person for the acts committed by another. During the course of his or her employment. It is necessary to understand the fact that the act committed by such an institution has caused damages to the person during the course of his or her employment. If the aggrieved person has been acting out of his own accord and performing a sovereign function, the institution cannot be held liable to pay damages and compensation to the person thus hurt, The principle of Vicarious liability arises only in those situations where there is a relationship of master servant, principal-agent or of partners between the employer and the employee. Art. 300 of the constitution provide for Situations wherein the Government can be sued and under what circumstances it can be sued. It is therefore concluded that when a state is exercising sovereign functions of its own, it cannot be sued. In case if damages have been caused to the employee during the course of his employment, the government is required to pay compensation to the employee for the damages caused. All private Institutions do not fall under the concept of the definition of a state. Hence, If a private corporation is tried and charged for committing an offence against an employee and (^39) P.V.Rao v. Khushal das, AIR 1949 Bom 277, 278
where an employee is damaged, the government cannot be compelled to pay compensation to the employee, since the private institution is a sovereign and it is performing sovereign function that do not fall within the control of the Government of India. In case where the act has been committed by the state, the government is still liable to pay compensation to the employees. Thus, in case where a tort has been committed by a government that is not in exercise of its sovereign functions it will be held liable to pay all costs to the aggrieved party. REFERENCES
- The Constitution of India Books Referred I. P Massey, Administrative Law Eight Edition, 2012, Eastern Book Company. C. K. Takwani, Lectures On Administrative Law, Sixth Edition, 2017, Eastern Book Company. H.W.R. Wade & C.F. Forsyth, Administrative Law, Tenth Edition, 2009, Christopher Forsyth Oxford University Press. Dr. R. K. Bangia, Law Of Torts, Twenty Third-Edition, 2013, Allahabad Law Agency. Dr. J. N. Pandey, Constitutional Law of India, Fifty Two Edition, 2015, Central Law Agency. Web-sites Referred
www.manupatra.com
www.lexisnexis.com
