The reason that I am liable is this, that by employing him I set a whole thing in motion; and

what he does, being done for my benefit and under my direction, I am responsible for the
consequences of doing it.1

1. INTRODUCTION
The concept of tortious liability of the state for the wrongs committed by its servants
during their course of employment and in the exercise of their duty essentially arises from the
principle of vicarious liability. It is a fundamental principle of the English legal system that the
king can do no wrong.2 Under the English Common Law, the king was considered to be
supreme and no action could be brought against the King for any kind of wrong committed by
his servants by the authority of the king during the course of employment. It has been held in
Tobin v. The Queen that He (the king) is not liable to be sued civilly or criminally for a
supposed wrong. That which the sovereign does personally, the law presumes will not be wrong;
that which the sovereign does by command to his servants, cannot be a wrong in the sovereign
because, if the command is unlawful, it is in law no command, and the servant is responsible for
the unlawful act, the same as if there had been no command. 3 Clearly, the crown could never be
held liable for the wrongs committed by its servants, not even for the ones expressly authorized
by it.4 It is worth mentioning that atleast from the time of Edward I, the king was not suable in
his own courts as a matter of right. 5 Not even the feudal lords could be sued of right in his own
court. That the king as chief of the feudal system had no court above him, in which he could be
1 Lord Brougham in Duncan v. Findlater, (1839) 6 Cl & Fin 894 at 910, 7 ER 934 at 940.
2 Feather v. The Queen, (1865) 6 B&S 296, per Cockburn, CJ.
3 Tobin v. The Queen, (1864) 16 CB (NS) 310, 354.
4 Canterbury (Viscount) A. H. General, (1842) 1 Ph 306; High Commissioner for India & Pakistan v.
Lall, (1948) 50 Bom LR 649 : AIR 1948 PC 121 : 75 IA 225 ; Union of India v. F. Gian Chand Kasturi
Lal, (1954) 56 PLR 68 : AIR 1954 Punj 159 : ILR (1954) Punj 602.
5 There were repeated early statements that before the time of Edward I (1272-1307) the king was suable
in his own courts. See 1 F. Pollock and W. Maitland, History of English Law 500 (1895) (quoting and
translating passage from Y.B. 33-5 Edw. I 471) ; sources cited in R. Watkins, The State as a Party Litigant
6 (1927).

VICARIOUS LIABILITY OF THE STATE

held liable, as the feudal lords could be in his, was the result of accident than theory. 6 But this
principle of not holding the Crown liable was abrogated by the Crown Proceedings Act 1947
which brought about major changes in the English legal history by making the Crown liable for
the tort committed by its servants similar to the private individuals. In India, although we do not
have any separate act to deal with the state liability, however, Article 300 of the Indian
Constitution states that
"(1) The government of India may sue and be sued by the name of 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
provisions which may be made by act of parliament or of the Legislature of such state enacted by
virtue of powers conferred by this Constitution, sue or be sued in relation to their respective
affairs in the like cases as Dominion of India and corresponding Provinces or the corresponding
Indian States might have sued or been sued if this Constitution had not been enacted."
It can be observed that there has been evolution in the legal world from keeping the state
immune from being sued in the court of law to making the state pay under the tort of vicarious
liability.7

6 Ibid, at 7.
7 The primary aim of this paper is to track the progress of the concept of vicarious liability of the state in
the legal world. A comparative study of the evolution of this concept under various jurisdictions and
viewing this concept from the historical perspective are the few key areas of discussion to be followed.
The reader will notice that this paper is primarily focused on the vicarious liability of the state in India,
although, I have discussed at length the position in various jurisdictions, especially UK.
[2]

VICARIOUS LIABILITY OF THE STATE

2. CONCEPT OF SOVEREIGN FUNCTIONS8

Sovereign functions are those actions of the state for which it is not answerable in any
court of law. For instance, acts such as defence of the country, raising and maintaining armed
forces, making peace or war, foreign affairs, acquiring and retaining territory, are functions
which are indicative of external sovereignty and are political in nature. Therefore, they are not
amenable to jurisdiction of ordinary civil court. The State is immune from being sued, as the
jurisdiction of the courts in such matters is impliedly barred.
The distinction between sovereign and non-sovereign functions has been considered in the
case of N. Nagendra Rao v. State of Andhra Pradesh9. In this case, all the earlier Indian decisions
on the subject have been referred to. The court came out with the following legal principles, in its
judgment:
In the modern sense, the distinction between sovereign or non-sovereign power thus does
not exist. It all depends on the nature of the power and manner of its exercise. Legislative
supremacy under the Constitution arises out of constitutional provisions. The legislature is free to
legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and
administer the law. A law made by a legislature may be bad or may be ultra vires, but, since it is
an exercise of legislative power, a person affected by it may challenge its validity but he cannot
approach a court of law for negligence in making the law. Nor can the Government, in exercise
of its executive action, be sued for its decision on political or policy matters. It is in public
interest that for acts performed by the State, either in its legislative or executive capacity, it
should not be answerable in torts. That would be illogical and impractical. It would be in conflict
with even modern notions of sovereignty.
8 There is subtle difference in the concept of state liability arising out of its own actions in contrast to the
concept of state liability arising out of the wrongs done by its employees during the course of
employment. The two concepts shouldnt be confused as being the same. Although a discussion on the
former concept is out of the scope of this paper, it would still be appropriate to discuss few areas in order
to effectively differentiate between both the concepts. Understanding Sovereign functions is essential for
the same.
9 N. Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663 : (1964) 5 JT 572
[3]

VICARIOUS LIABILITY OF THE STATE

The first case in which the issue as to how far the State was liable in tort arose before the
Supreme Court of India is State of Rajasthan v. Vidyawati10. In this case, SINHA, C.J., made the
following observations: 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, of authorising or instigating one, and that he could not be sued in his own courts. In
India, ever since the time of the East India Company, the Sovereign has been held liable to be
sued in tort or in contract and the common law immunity never operated in India. Now that we
have, by our Constitution, established a Republican form of Government, and one of the
objectives is to establish a socialistic State with its varied industrial and other activities,
employing a large army of servants, there is no justification, in principle or in public interest, that
the State should not be held liable vicariously for the tortious act of its servant.11
The above mentioned decision of the Supreme Court of India was followed by another
decision in the case of Kasturilal Ralia Ram Jain v. State of U.P.12 wherein the court, speaking
through GAJENDRAGADKAR, C.J., fully approved the decision of P EACOCK, C.J., in the case of
Peninsular and Oriental Steam Navigation Co.13, stating per incuriam that it enumerated a
principle which has been consistently followed in all subsequent decisions14 and observed: It
must be borne in mind that when the State pleads immunity against claims for damages resulting
from injury caused by negligent acts of its servant, the area of employment referable to sovereign
powers must be strictly determined. Before such a plea is upheld, the Court must always find that
10State of Rajasthan v. Vidyawati, AIR 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 : (1958-65)
ACJ 296.
11 Ibid, at 304.
12Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 : (1965) 1 SCWR
955.
13 (1868-1869) 5 Bom HCR App 1 P. 1 (Curiously the case is not reported in any Calcutta Law Journal).
14 Supra, note 12.
[4]

VICARIOUS LIABILITY OF THE STATE

the impugned act was committed in the course of an undertaking or employment which is
referable to the exercise of delegated sovereign power.15
The decision of the Supreme Court of India in the case of Kasturilal has been criticised by
a leading constitutional authority of India. It has also been condemned as being unsatisfactory. 16
The authority of this case has, although, been greatly undermined by the subsequent decision of
the apex court, as recently observed by a three judge bench: much of its efficacy as a binding
precedent has been eroded17, however, as a matter of fact, this case is yet to be overruled.

3. STATE LIABILITY: A COMPARATIVE AND HISTORICAL

PERSPECTIVE
3.1. UNITED KINGDOM
As discussed in the introductory part, under the English Common Law "The King could do
no wrong" and therefore, the King was not liable for the wrongs of its servants. But, in England
the position of old Common law maxim has been changed by the Crown Proceedings Act, 1947.
Earlier, the King could not be sued in tort either for wrong actually authorised by it or committed
by its servants, in the course of their employment. With the increasing functions of State, the
Crown Proceedings Act had been passed, now the Crown is liable for a tort committed by its
servants just like a private individual.

3.2. THE UNITED STATES OF AMERICA

In America, the Federal Torts Claims Act, 1946 provides the principles, which
substantially decides the question of liability of State. The President of the United States enjoys

15 Ibid.
16 SEERVAI, Constitutional Law of India, 2nd edition, pp. 1137-39, 1992.
17 Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667.
[5]

VICARIOUS LIABILITY OF THE STATE

absolute immunity from damages. In United States, the Dalehits case18 was reaffirmed by the
Supreme Court in Melvin Larid v. Jim Nelma19 by holding that the state is not responsible for the
damage caused from sonic booms by military planes under the provisions of the Federal Tort
Claims Act, unless negligence is proved. It would indeed be appropriate to say that the concept
of state immunity is still holding the United States of American by strong force, especially in the
federal jurisdiction.

3.3. ANCIENT AND MEDIEVAL INDIA

In ancient India, under the Hindu jurisprudence, it was an undisputed principle that no one
is exempted from the operation of law.20 This liability to equal punishment extended even to the
king, relative of the king, a judge or an ordinary citizen. The rule of law was considered supreme
and binding on everyone alike. The important functions of the king were concerned with
protection of people, punishment of crimes and maintenance of dharma or social order.
In the medieval Indian history the personal liability of officers for their wrongs was more
vogues with evidences showing equality between the ruler and the ruled subject. Only when the
king considered it proper to undertake the burden of public officer, it was then the state treasury
used to pay the compensation. Dharma was considered the administrative law binding the king as
well as the subjects. Both in Hindu law and Muslim law, the rulers themselves administered
justice as far as possible and the rest was done by the exceptionally learned and honest judges.
The most significant recent trend has been an assertion on the part of the court that it has a power
to grant compensation. The principle of personal liability of public servants for wrongs done to
citizens is already a part of Indian law based on English case laws.

18 438 US 478 (1978)

19 Melvin Larid v. Jim Nelma, 406 US 797 (1972)
20 See KP Jayaswal, A treatise on Basic Hindu Law.
[6]

VICARIOUS LIABILITY OF THE STATE

3.4. MODERN AND CONTEMPORARY INDIA

The existing law on the state liability in India traces its roots back to the section 65 of the
Government of India Act 1858. The section provided: 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 for India as they could have done against the Company. After the adoption of
the constitution, Article 300 has extensively dealt with a number of cases related to the state
liability which could be traced back from the Section 32 of the Government of India Act, 1915,
the genesis of which can be found in Section 65 of the Government of India Act, 1858. It will
thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of
India and Government of each State are in line of succession of the East India Company. In other
words, the liability of the Government is the same as that of the East India Company before,
1858. The greatest landmark in this area of tort law was the case of Rudul Shah v. State of Bihar21
where CHANDRACHUD, CJ observed in the Supreme Court that the court has a power to grant
compensation in writ petition under Article 32 of the Constitution of India.

4. IMPORTANT CASES IN INDIAN HISTORY

There are some invariably important cases of the Indian history without which the discussion on
vicarious liability of the state would be incomplete. In this section, we seek to discuss some
important issues of state liability by discussing those cases. Further, we would be raising some
questions in regard to this concept which need to be answered time and again. Our aim is to
study those cases and come out with our own interpretation of the judgement delivered in the
court of law.

State of Haryana v. Santra (Smt.)22

The ratio of this case was on the principles of state liability for negligence. It was
clearly established in this case that the doctor, while performing the operation, was acting

21Rudul Shah v. State of Bihar, AIR 1983 SC 1086

22State of Haryana v. Santra, AIR 2000 SC 1888 : (2000) 5 SCC 182
[7]

VICARIOUS LIABILITY OF THE STATE

as a government servant and acting in the course of employment of the government.

Hence when there was negligence, it amounted to acting in bad faith, and so the defence
of sovereign immunity could not be used by the state. Moreover it was also held that such
negligence which could have been perceived by a professional who had a duty to do so
should take into consideration these matters and cannot escape liability by claiming
defence of consent by the petitioner.
The respondent in the above case was a poor lady who went under a sterilization
operation at the General Hospital, Gurgaon, as she already had seven children and wanted
to take advantage of the family planning scheme launched by the State Government of
Haryana. Smt. Santra was informed that she would not conceive in future. Smt. Santra
approached the Chief Medical Officer, Gurgaon, for her sterilization in 1988. But she
gave birth to a female child. This led her to file a suit claiming Rs. 2 lakhs as damages for
medical negligence due to failed sterilization which was decreed for a sum of Rs.
54,000/- with interest at the rate of 12 per cent per annum from the date of institution of
the suit till the payment of the decretal amount. Two appeals were filed against this
decree in the court of District Judge, Gurgaon, which were disposed of by Addl. District
Judge, Gurgaon, by a common judgment dated 10.5.1999. Both the appeals - one filed by
the State of Haryana and the other by Smt. Santra were dismissed. The second appeal
filed by the State of Haryana was summarily dismissed by the Punjab & Haryana High
Court on 3.8.1999.
There are two major issues involved in the case. One is that there was negligence
on the part of the doctor who operated on her as the operation was a failure. Moreover as
the operation took place in a Government Hospital, the state should be vicariously liable
for the negligent act of its servant in the course of employment. This law also deals with
the Hindu Adoptions and Maintenance act, 1956, Ss.20 and 23. The principle involved for
the above claim is the vicarious liability of the state for the negligence of its doctors.
In reply to the claim of compensation of Rs. 2 lakhs by the respondent, the officers
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VICARIOUS LIABILITY OF THE STATE

defending the state argued that during the time of the operation only the right Fallopian
tube was operated on and the left tube was left untouched. The appellants also argued that
the negligence on the part of the doctors would not make the state vicariously liable and
that the damages paid to her for the maintenance of the child could not be decreed as
there was no element of tort involved. It was further pleaded that Smt. Santra had herself
put her thumb impression on a paper containing a recital that in case the operation was
not successful, she would not claim any damages. It was pleaded that she was estopped
from raising the plea of negligence or from claiming damages for an unsuccessful
sterilization operation from the State.
After the District Court dismissed the matter giving a compensation of Rs 54,000
and an interest rate of 12% per annum, the State filed a suit in the Supreme Court
challenging the decision. Due to the failure of the operation and the conceivement of the
child, the respondent had filed a suit claiming for damages worth Rs. 2 lakhs for the
maintenance of the child and herself as she already as seven children. The respondent
claimed that if she had offered herself for complete sterilization operation, both the
Fallopian tubes should have been operated upon. The doctor who performed the operation
acted in the most negligent manner.
Moreover she also stated that as the operation was carried out in a government
hospital and the doctor being a government servant, the state was vicariously liable for
the act of the doctor as a servant of the State.

Judgement:
The explanation given by the appellants for absence of state liability was rejected by the trial
court which the suit for a sum of Rs. 54,000 with pendate lite and future interest at 12% per
annum. The decision was confirmed by the Appellant Court and State High Court. The trial court
as also the lower appellate court both recorded concurrent findings of fact that the sterilisation
operation performed upon Smt. Santra was not 'complete' as in that operation only the right
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VICARIOUS LIABILITY OF THE STATE

Fallopian Tube was operated upon while the left Tube was left untouched. The courts were of the
opinion that this exhibited negligence on the part of the Medical Officer who performed the
operation. Smt. Santra, in spite of the unsuccessful operation, was informed that sterilisation
operation was successful and that she would not conceive any child in future. The plea of
estoppel raised by the defendants was also rejected. The amount of Rs. 54,000/- which has been
decreed by the courts below represents the amount of expenses which Smt. Santra would have to
incur at the rate of Rs. 2,000/- per annum in bringing up the child up to the age of puberty.
Having regard to the above facts the court said that Smt. Santra was entitled to full
compensation from the State Government and appeal was dismissed but without any order as to
cost.

Challa Ramkonda Reddy v. State of Andhra Pradesh23

In the judgment of the High Court of Andhra Pradesh in Challa Ramkonda Reddy
v. State of AP, it was held that the plea of sovereign immunity was not available, where
there was a violation of the fundamental rights of the citizens. It was a case where a
person arrested by the police was lodged in a cell in the jail. He expressed his
apprehension to the authority in charge of the jail, that his enemies were likely to attack
and kill him in the jail. This apprehension was not given any consideration by the
authorities. During the particular night, there were only two persons guarding the jail,
instead of the usual six. The enemies of the arrested person entered the jail during the
night and shot him dead. The legal representatives of the deceased filed a suit for
damages. The trial court found that the authorities were negligent in guarding the jail and
that the death of the deceased was attributable to such negligence. However, the suit was
dismissed on the ground that the arrest and detention of the deceased in jail was in
exercise of sovereign functions of the State. During the hearing of the plaintiffs appeal,
the State relied upon the decision of the Supreme Court in Kasturi Lal24. The High Court,

23Challa Ramkonda Reddy v. State of Andhra Pradesh, AIR 1989 AP 235

24 Supra, note 12.
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VICARIOUS LIABILITY OF THE STATE

however, held that where the fundamental rights of the citizens are violated, the plea of
sovereign immunity, which is assumed to be continued by article 300 of
the Constitution25, cannot be put forward. This view of the High Court of Andhra Pradesh
has been affirmed by the Supreme Court of India in State of Andhra Pradesh v. Chella

Ramakrishna Reddy26.
Nilabati Behra v. State of Orissa27
Another landmark judgement was Nilabati Behra v. State of Orissa awarding
compensation to the petitioner for the death of her son in police custody. The court held
that a claim in public law for compensation for violation of human rights and
fundamental freedoms, the protection remedy for enforcement and protection of such
right, is distinct from and in addition to the remedy in private law damages for tort. The
court expressly held that principle of sovereign immunity does not apply to the public law
remedies under Article 32 and Article 226 for the enforcement of fundamental rights. The
Kasturi Lal case ratio is confined to private law remedies only.

The distinction between public and private law and the remedies under the two has been
emphasised in Common Cause, a Registered Society v. Union of India28 and Chairman Railway
Board v. Chandrima Das29 cases. It was held "where public functionaries are involved and the
matter relates to the violation of fundamental rights or the enforcement of public duties, the
remedy would still be available under the public law notwithstanding that a suit could be filed for
damages under private law."
25 See pp. 2 of this paper.
26State of Andhra Pradesh v. Chella Ramakrishna Reddy, AIR 2000 SC 2083.
27Nilabati Behra v. State of Orissa, AIR 1993 SC 1960 : (1993) 2 SCC 746.
28Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667.
29Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988 : (2000) 2 SCC 465.
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VICARIOUS LIABILITY OF THE STATE

Saheli v. Commissioner of Police30

Saheli V. Commissioner of Police was another milestone in the evaluation of
compensation jurisprudence in writ courts. The masterpiece judgement in Vidyawati,
which was freezed by Kasturi Lal was rightly quoted in this case. The State was held
liable for the death of nine year old child by Police assault and beating. Delhi
Administration was ordered to pay compensation of Rs. 75000/-. The significance of this
case is that firstly, the revival of Vidyawati ratio and secondly that the Delhi
Administration was allowed to recover money from those officers who were held
responsible for this incident.

5. CONCLUSION
In all the cases discussed before, the entity sought to be made liable is not the
government but the State. So far as the government is concerned, it may well say that the
statutory authority is neither accountable nor subordinate to it. Hence the government
cannot be visited with the consequences flowing from a wrong order made by a statutory
authority. As far as the State is concerned, it cannot put forward any such plea inasmuch
as the statute is enacted by it by Legislature. The appointment of the authority is also
done either by the Statute itself or by such authority as may be authorised by the Statute.
The act of the statutory authority in such a case is an act done for and on behalf of the
State. Hence the state is held liable.
States liability for the acts or omissions of statutory authorities arises only in cases
where the statutory authority acts outside his legal authority while purporting to act
pursuant to the legal authority conferred upon him and the act or omission, which causes
or results in damage to a person, is not within the ambit of the statutory protection, if any,
contained in such enactments. This rule is evolved for the obvious reason that an act done
under a statute and in accordance with the statute can never amount to a tort as was said
by the Supreme Court in Martin Burn Ltd. Vs. Calcutta Corporation31. The Court said A
result flowing from a statutory provision is never an evil.
30Saheli v. Commissioner of Police, AIR 1990 SC 513.
31Martin Burn Ltd. Vs. Calcutta Corporation, AIR 1966 SC 529, at 535.
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VICARIOUS LIABILITY OF THE STATE

As suggested by the Law Commission there is need to prescribe the liability of the
State under the law of torts and in the interest of Justice we should avoid the arbitrary
distinction between the sovereign and non sovereign function of the State and must look
for the just provision against the preserver as well.
King can do no wrong should be interpreted literally, if King violates my right but
not compensates me then no doubt king is doing wrong, to overcome his wrong he is
bound to compensate me and save the web of jural relationship, he has been carrying with
his subject.

6. BIBLIOGRAPHY
6.1. BOOKS REFERRED
Ratanlal and Dhirajlals The Law of Torts, 26th Edition, Revised by Justice G. P. Singh,
Lexis Nexis Butterworths Wadhwa Nagpur Publication.

Ramaswamy Iyers The Law of Torts, 10 th Edition, Revised by A. Laxminath and M.

Sridhar, Lexis Nexis Butterworths Wadhwa Publication.
[13]

VICARIOUS LIABILITY OF THE STATE

Geoffrey Samuels Tort: Cases and Materials, 2 nd Edition (2008), Thomson Sweet and
Maxwell Publication, London.

Landmark Cases in the Law of Tort, Edited by Charles Mitchell and Paul Mitchell, Hart
Publishing, Oxford and Portland , Oregon, 2010.

Martin Mathews and Jonathan Morgan, Tort Cases and Materials, 6 th Edition, Oxford
University Press.

6.2 WEBSITES REFERRED

www.indiankanoon.org
www.lawyersclubindia.com
www.legalservicesindia.com
www.ebc-india.com
www.manupatra.com
www.jstor.com
www.heinonline.com
www.westlawindia.com

[14]