In a modern welfare State, the Government performs a wide range of activities that directly affect citizens. These activities are not limited to sovereign functions like defence and administration of justice but also include commercial, industrial, and service-oriented functions such as running transport services, hospitals, public utilities, and infrastructure projects. When government servants, while performing such functions, commit a civil wrong (tort) causing injury or loss to individuals, an important question arises: Is the Government liable in tort?
The concept of tortious liability of the Government addresses this issue. Under Administrative Law, this doctrine ensures that the State does not enjoy absolute immunity and that individuals have remedies against wrongful acts of government authorities. Indian courts have played a crucial role in shaping and expanding this principle through judicial decisions.
Meaning of Tortious Liability of the Government
Tortious liability of the Government refers to the legal responsibility of the State to compensate individuals for civil wrongs committed by its servants during the course of their employment.
In simple terms, if a government employee commits a tort such as negligence, trespass, false imprisonment, or nuisance while performing official duties, the Government may be held liable to pay damages, subject to certain exceptions.
This liability is based on the principle of vicarious liability, where a master is responsible for the acts of his servant done in the course of employment.
Historical Background: Position under English Law
Indian law on tortious liability of the Government has its roots in English law. Under English common law, the doctrine “The King can do no wrong” prevailed, granting the Crown immunity from tortious liability.
However, over time, this rigid doctrine was diluted, and statutory reforms allowed suits against the Crown. India, after independence, consciously moved away from absolute sovereign immunity and adopted a more balanced approach suitable for a democratic welfare State.
Constitutional and Legal Basis in India
The Constitution of India does not expressly define the tortious liability of the Government. However, Article 300 provides that:
- The Government of India and the State Governments may sue or be sued
- Their liability is similar to that of the Dominion of India and Provinces before the Constitution
This provision forms the constitutional foundation for holding the Government liable in tort, subject to judicial interpretation.
Doctrine of Sovereign and Non-Sovereign Functions
Indian courts have distinguished between sovereign functions and non-sovereign functions to determine governmental liability.
- Sovereign functions: Functions that are inalienable to the State, such as defence, foreign affairs, administration of justice, and maintenance of law and order.
- Non-sovereign functions: Commercial, welfare, or service-oriented activities that can be performed by private individuals.
Traditionally, the Government enjoyed immunity for torts committed during sovereign functions but was held liable for torts arising from non-sovereign functions.
Important Judicial Decisions
P & O Steam Navigation Co. v. Secretary of State (1861)
This landmark case laid the foundation of the doctrine in India. The Government was held liable for negligence of its employees during non-sovereign functions. The court distinguished between sovereign and non-sovereign acts and held that immunity applies only to the former.
State of Rajasthan v. Vidyawati (1962)
In this case, a government driver negligently caused the death of a pedestrian while driving a government vehicle. The Supreme Court held the State liable and ruled that maintenance of a vehicle for official use is a non-sovereign function.
This decision marked a progressive step by limiting the scope of sovereign immunity and emphasizing accountability of the State.
Kasturilal v. State of Uttar Pradesh (1965)
This case temporarily restricted the liberal approach. Gold seized by police was misappropriated by a constable. The Supreme Court held that the State was not liable as the act was committed during the exercise of sovereign powers.
Though legally significant, this judgment was widely criticized for protecting State immunity at the cost of individual justice.
N. Nagendra Rao v. State of Andhra Pradesh (1994)
This case marked a turning point. The Supreme Court held that the State cannot escape liability for negligence of its officers in matters of custody of property. The Court emphasized that the concept of sovereign immunity must be narrowly interpreted in a welfare State.
The Court clarified that immunity should not apply where State action causes injury due to negligence or abuse of power.
Nilabati Behera v. State of Odisha (1993)
The Supreme Court awarded compensation for custodial death, holding the State accountable for violation of fundamental rights. The Court ruled that sovereign immunity cannot be used as a defence where Article 21 is violated.
This case expanded State liability beyond traditional tort law into constitutional torts.
Constitutional Tort and Public Law Remedy
Indian courts have evolved the concept of constitutional tort, where compensation is awarded for violation of fundamental rights, especially under Articles 14 and 21.
Unlike private tort claims, constitutional torts focus on:
- Accountability of the State
- Protection of fundamental rights
- Public law remedy rather than private compensation alone
The Supreme Court of India has consistently held that public law compensation does not bar private law remedies, strengthening citizen protection.
Present Position of Law in India
The modern judicial trend shows that:
- Absolute sovereign immunity is no longer accepted
- Welfare State functions invite liability
- Negligence and abuse of power attract compensation
- Fundamental rights violations override immunity claims
The distinction between sovereign and non-sovereign functions still exists but is interpreted narrowly to prevent injustice.
Importance of Tortious Liability of the Government
The doctrine is significant because it:
- Ensures accountability of the State
- Protects citizens from abuse of administrative power
- Promotes rule of law
- Builds public confidence in governance
- Aligns administration with constitutional values
Without such liability, administrative power would become arbitrary and unchecked.
Mnemonic to Remember Tortious Liability of Government
“S.N.A.P.C.”
S – Sovereign functions (limited immunity)
N – Non-sovereign functions (State liable)
A – Article 300 basis
P – Public law compensation
C – Case law evolution
Or an easier one:
“L.A.W.S.”
L – Liability of State
A – Acts of servants
W – Welfare State approach
S – Supreme Court safeguards
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