Constitutional Torts Under Article 300 of the Constitution Of India

By : Sarica Ashok Reddy on 30 June 2011 Name Email Subject Print this

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Introduction: Article 300 of the Constitution says that the Government of India may sue or 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, or of the Legislature of a State. hus the Constitution ma!es the Union and the States as "uristic #ersons ca#able for o$ning and ac%uiring #ro#erty, ma!ing contracts, carrying on trade or business, bringing and defending legal action, "ust as #rivate individuals. he legal #ersonality of the Union

of India, or a State of Indian Union is thus #laced beyond doubt by the e&#ress language of Article 300. Article 300 '() #rovides that the Government of India may be sued in relation to its affairs in the li!e case as the *ominion of India, sub"ect to any la$ $hich may be made by Act of +arliament. he +arliament has not made any la$ and therefore the %uestion has to be determined as to $hether the suit $ould lie against the *ominion of India before the Constitution came into force. hus, so long as the +arliament or the State Legislature do not enact a la$ on the #oint, the legal #osition in this res#ect is the same as e&isted before the commencement of the Constitution. ,efore #resent Constitution came into force the -ast India Com#any, and after Government of India Act, (./., $hich transferred the Government of India to 0er 1a"esty $ith its rights and liabilities, the Secretary of State Council $ere liable for the tortuous acts of their servants committed in the course of their en"oyment. Torts under The Constitution: Article 300 Article 300 '() #rovides that the Government of India may be sued in relation to its affairs in the li!e case as the *ominion of India, sub"ect to any la$ $hich may be made by Act of +arliament. he +arliament has not made any la$ and therefore the %uestion has to be determined as to $hether the suit $ould lie against the *ominion of India before the Constitution came into force. hus, so long as the +arliament or the State Legislature do not enact a la$ on the #oint, the legal #osition in this res#ect is the same as e&isted before the commencement of the Constitution. ,efore #resent Constitution came into force the -ast India Com#any, and after Government of India Act, (./., $hich transferred the Government of India to 0er 1a"esty $ith its rights and liabilities, the Secretary of State Council $ere liable for the tortuous acts of their servants committed in the course of their en"oyment. he Su#reme Court held that the Secretary of State for India $as liable for the damages caused by the negligence of Government servants, because the negligent act $as not done in the e&ercise of a sovereign function. he Court dre$ a distinction bet$een acts done in e&ercise of "sovereign #o$er" and acts done in the e&ercise of 2non3sovereign #o$er" that is, acts done in the conduct of underta!ings $hich might be carried on by #rivate #erson4individuals $ithout having such #o$er.

In State of Rajasthan v. Vidyawati[1], the driver of a "ee# o$ned and maintained by the State of 5a"asthan for the official use of the Collector of a district, drove it rashly andnegligently $hile bringing it bac! from the $or!sho# after re#airs and !noc!ed do$n a#edestrian and fatally in"ured him. As a result of the in"uries the #edestrian died. 0is$ido$ sued the State of 5a"asthan for damages. he Su#reme Court held that the State$as liable and a$arded damages. he accident too! #lace $hile the driver $as bringing itbac! from the $or!sho# to the Collector6s residence. It cannot be said that he $asem#loyed on a tas! $hich $as based on delegation of sovereign or governmental #o$ers of the State. 0is act $as not an act in the e&ercise of a sovereign function. he Court saidthat the em#loyment of driver of a "ee# car for the use of a civil servant $as an activity $hich $as not connected in any manner $ith the sovereign #o$er of the State at all. he Court a##roved the distinction made in Steam Navigation Company's case bet$een the sovereign function, and the non3sovereign function of the State. 0o$ever, Sinha, C. 7., made an im#ortant observation in Vidyawati's case. In India ever since the time of -ast India Com#any, the sovereign has been held liable to be sued in tort or in contract, and the Common la$ immunity never o#erated in India. InKasturi Lai v. State . ![2]. a #erson $as ta!en into custody on sus#icion of being in #ossession of stolen #ro#erty and ta!en to #olice station. 0is #ro#erty including certain %uantity of gold and silver $as ta!en out from him and !e#t in the 1al!hana till the dis#osal of the case. he gold and silver $as misa##ro#riated by a #olice constable $ho fled to +a!istan. he a##ellant sued the State of Uttar +radesh for return of the gold and silver, and in the alternative claimed damages for loss caused by negligence of the 1eerut#olice. he State contended that no liability $ould accrue for acts committed by a #ublic servant $here such acts $ere related to the e&ercise of sovereign #o$er of the State. he Su#reme Court held that the State $as not liable. In the 7udgment Chief 7ustice Ga"endragad!ar said that 2If a tortuous act committed by a #ublic servant gives rise to a claim for damages, the %uestion to as! is, $as the tortuous act committed by a #ublic servant in discharge of statutory functions $hich are referable to, and ultimately based on the delegation of the sovereign #o$ers of the State to such #ublic servant. If the ans$er is in the affirmative the action for damages $ill not lie. 8n the other hand, if the tortious act has been committed by a #ublic servant in the discharge of duties assigned to him not by virtue of the delegation of any sovereign #o$ers, an action for damages $ould lie.2 he Court held that the tortious act of the #olice officers $as committed by them in discharge of sovereign #o$ers and the State $as therefore not liable for the damages caused to the a##ellant. In N. Nagendra Rao " Co. v. State of #.! 93:,the Su#reme Court has held that $hen due to the negligent act of the officers of State a citi;en suffers any damage the State $ill be liable to #ay com#ensation and the #rinci#le of sovereign immunity of State $ill not absolve him from this liability. he court held that in the

conte&t of modern conce#t of sovereignty the doctrine of sovereign immunity stands diluted and the distinction bet$een sovereign and non3sovereign functions no longer e&ists. he Court noted the dissatisfactory condition of the la$ in this regard and suggested for enacting a##ro#riate legislation to remove the uncertainty in this area. he Su#reme Court held that the State $as liable vicariously for the negligence committed by its officers in discharge of #ublic duty conferred on them under a statute. As regards the immunity of State on the ground of sovereign function, the Court held that the traditional conce#t of sovereignty has undergone a considerable change in the modern times and the line of distinction bet$een sovereign and non3 sovereign #o$ers no longer survives. <o civili;ed system can #ermit an e&ecutive as it is sovereign. he conce#t of #ublic interest has changed $ith structural change in the society. <o legal system can #lace the State above la$ as it is un"ust and unfair for a citi;en to be de#rived of his #ro#erty illegally by negligent act of officers of the State $ithout remedy. he need of the State to have e&traordinary #o$ers cannot be doubted. ,ut it cannot be claimed that the claim of the common man be thro$n out merely because the act $as done by its officer even though it $as against la$ and negligence. <eed of the State, duty of its officials and right of the citi;ens are re%uired to be reconciled so that the rule of la$ in a $elfare State is not sha!en. In a $elfare State, functions of the State are not only defense of the country or administration of "ustice or maintaining la$ and order but it e&tends to regulating and controlling the activities of the #eo#le in almost every s#here, educational, commercial, social, economic, #olitical and even marital. he demarcating bet$een sovereign and non3sovereign #o$ers for $hich no rational basis survives has largely disa##eared. herefore, barring functions such as administration of "ustice, maintenance of la$ and order and re#ression of crime etc. $hich are among the #rimary and unalienable functions of a constitutional Government, the State cannot claim any immunity. he Court observed that Sovereignty no$ vests in the #eo#le. he legislature, the e&ecutive and the "udiciary have been created and constituted to serve the #eo#le. In !eop$es nion for %emo&rati& Rights v. !o$i&e Commissioner, %e$hi !o$i&e'ead(uarters[4] one labourer $as ta!en to the #olice station for doing some $or!. =henhe demanded $ages he $as severely beaten and ultimately succumbed to the in"uries. It$as held that the State $as liable to #ay com#ensation to the family of the deceased labourer. In yet another case, Common Cause, a Registered So&iety v. nion of )ndia[5] the Su#reme Court again e&amined the $hole doctrine and re"ected the sovereign immunity rule. he Court held that the rule of State liability as laid do$n in !. " *. Steam Navigationcase is very outmoded. It said that in modern times $hen the State activities have been considerably increased it is very difficult to dra$ a line bet$een its sovereign and non3sovereign functions. he increased activities of the State have made a dee# im#ression on all facets of citi;ens6 life, and therefore, the liability of

the State must be made co3e&tensive $ith the modern conce#t of a $elfare State. he State must be liable for all tortuous acts of its em#loyees, $hether done in e&ercise of sovereign or non3sovereign #o$ers. In the #rocess of "udicial inter#retation Kasturi$a$'s case has #aled into insignificance and has no$ no longer binding value. In State of #.!. v. Cha$$a Ram+rishna Reddy !no$n as #risoners murder case the Su#reme Court held that in the pro&ess of judi&ia$ advan&ement Kasturi$a$'s &ase has pa$ed into insignifi&an&e and no $onger of any ,inding va$ue. In this case a #risoner $ho had informed the "ail authorities that he a##rehended danger to his life but no action $as ta!en on this information and no measures $ere ta!en for his safety and he $as !illed in the #rison. It $as also found that a #olice officer $as a #arty to the cons#iracy to !ill the #risoner $hich $as hatched in the #rison. he Court held that in case of violation of fundamental right the defence of sovereign immunity $hich is an old and archaic defence cannot be acce#ted and the government and the #olice are liable to com#ensate the victim. he Court said that the #ersonal liberty should be given su#remacy over sovereign immunity. Such rights cannot be defeated by #leading the old and archaic defence ofsovereign immunity $hich has been re"ected in several cases by the Su#reme Court. he decisions of the Su#reme Court in the cases of #ersonal liberty clearly sho$ that the doctrine of state immunity is not available. In -him Singh v. State of .ammu and Kashmir [6] the Su#reme Court a$arded a sum of Rs. /0,000 to the #etitioner as com#ensation for violation of his fundamental right of #ersonal liberty under Art. >( of the Constitution. he #etitioner $ho $as an 1LA $as illegally arrested and detained in #olice custody and deliberately #revented from attending the session of the Legislative Assembly. In State of *rissa v. !adma$o&h[7] the #laintiff filed a suit for damages against the State of 8rissa for in"uries caused to him by the 1ilitary +olice. he fact $as that in a##rehension of danger of attac! on the office of the S. *. 8. and its #ro#erties by anunla$ful mob $hich resorted to violence, there $as #olice cordoning in the 8. 1. +. under the control of su#ervisory officers and magistrates $ithout any orders from the magistrate or higher authorities the #olice #ersonnel assaulted members of the mob as a result of $hich the #laintiff received in"uries. he Court held that the in"uries caused to the #laintiff by the #olice #ersonnel $ith a vie$ to dis#erse the unla$ful cro$d $ere in e&ercise of the sovereign function of the State. As the #osting of +olice for the #rotection of its officers and #ro#erties $as in e&ercise of the delegated sovereign function, the fact that the #olice committed e&cess in discharge of their function $ithout authority could not ta!e a$ay the illegal act from

the #urvie$ of delegated sovereign function. he State $as held to be not liable for the #olice. In Satyawati v. nion of $ndia[8], an Air ?orce vehicle $as carrying hoc!ey team to Indian Air ?orce Station to #lay a match against a team of Indian Air ?orce. After the match $as over, the driver $as going to #ar! the vehicle $hen he caused the fatal accident by his negligence. It $as argued that it $as one of the functions of the Union of India to !ee# the army in #ro#er sha#e and the tune and that hoc!ey team $as carried by the vehicle for the #hysical e&ercise of the Air ?orce #ersonnel and therefore the Government $as not liable. he Court re"ected this argument and held that the carrying of hoc!ey team to #lay a match could by no #rocess of e&tension be termed as e&ercise of sovereign #o$er and the Union of India $as therefore liable for damages caused to the #laintiff. In other im#ortant cases li!e In Roop$a$ v. nion of )ndia,[9] where the military "a$ans in the em#loyment of the Union of India lifted the drift $ood belonging to the #laintiff and carried it through military vehicles for #ur#oses of cam# fire and the fuel $as used by them for their re%uirements. he Court held that the act $as done by "a$ans in the course of theem#loyment and the Government $as liable for damages. -ven assuming that the "a$ansfound the $ood lying on the river side and too! them a$ay ,ona fide thin!ing that itbelonged to the Government, the State $as liable to com#ensate the #laintiff $henultimately it $as found to belong to the #laintiff. 5easoning $as that illegal act in carrying a$ay the fire $ood could be committed by the military "a$ans by carrying it through any other truc! $hich any #rivate #erson could do. In another case of -a/i #mri+ Singh v. nion of )ndia[10] an army driver $hile driving an army truc! caused accident to the #laintiff. At the time of accident the driver $as de#uted on duty for chec!ing military #ersonnel on duty for the $hole day. he Court held that the accident $as caused in discharge of the sovereign function of the State because only military #ersonnel could be de#uted to chec! the military #ersonnel on duty. It $as for this #ur#ose that the army vehicle $as #laced at the dis#osal of the #erson de#uted for duty and he himself drove the vehicle to go from #lace to #lace. his function cannot be entrusted to #rivate individuals. In nion of )ndia v. Sugra,ai,01 one 1r. Abdul 1a"id $as !noc!ed do$n by a military truc! $hich $as engaged in carrying a machine to the School of Artillery. he machine $as sent for re#airs to military $or!sho# and after re#airs it $as being trans#orted to the School ofArtillery. It $as a machine for locating enemy guns $hich $as meant for giving training to military officers. he Government +leader argued that training of army #ersonnel $as a sovereign function $hich in turn re%uired maintenance of machines, and maintenance of machines re%uired that they should be !e#t in #ro#er re#air, and that $or! of re#airing re%uired its trans#ortation from $or!sho# to military school and therefore trans#orting $as a sovereign function.

he Court re"ected this argument that every act $hich is necessary for the discharge of a sovereign function involves an e&ercise of sovereign #o$er. 1any of these acts do not re%uire to be done by the State through its servants, for e&am#le su##ly of food to army $hich may be trans#orted in truc!s belonging to #rivate #ersons. he Court said that though the trans#ortation of the machine from the $or!sho# to the military school $as necessary for the training of army #ersonnel but it $as not necessary to trans#ort it though a military truc! driven by defence #ersonnel. he machine could have been carried through a #rivate carrier $ithout any material detriment for the discharge of, by the State of its sovereign function of maintaining army #ersonnel. ,ut in this case the court also observed that in certain cases trans#orting of machine by a military truc! can be regarded as a sovereign function, e. g., carrying machine for the immediate use of army engaged in active military duty. Conclusion: he rule of liability of the State for torts of its servants as laid do$n in the Steam<avigation6s case is very out3moded. In the modern age $hen the activities of the Statehave vastly increased, it is very difficult to dra$ a distinction bet$een sovereign and non3sovereign functions of the State. he increased activities of the State have made a dee# im#act on all facts of an individual6s life, and therefore, the liability of the State should accordingly be made co3e&tensive $ith its modern role of a $elfare State and not beconfined to the era of individualism.