Tortious liability of the state by Rusha Mukherjee at lexcliq

Doctrine of vicarious liability
Meaning – As the state is a legal and not a living personality it is required to act through Human agency or the servants.Tortious liability of the state is the liability of the state for the tortious acts of his servants that has to be considered. It refers to the situation when the state can be held vicariously liable for the wrongs committed by his employees .Winfield explains the doctrine of vicarious liability as something that signifies the liability which A may incur to C for the damage caused to C by the negligence or other tort of B. It is not necessary that he shall have participated in anyway in the Commission of the tort nor that a duty owed in law by A to C shall have been broken. The only requirement is it should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relation. The doctrine of vicarious liability is based on two maxims number 1.respondeat superior(let the principle be liable) 2.qui facit per alium facit Per Se(He who does an act through another does it himself)
Position in English law – under common law absolute immunity of the crown is accepted and the crown could not be sued in torts for wrongs committed by its servant in course of their employment. In 1863 the court observed that if the crown is held liable then the principle of ‘the king can do no wrong’ was meaningless. But with the increase of governmental functions the immunity afforded to the crown in tortious liability proved to be incompatible with the demands of justice. The actual meaning of the king can do no wrong was that the king has no legal power to do wrong. The Crown Proceedings Act placed the government in the same position as the private individual. The increased function of the state made this immunity incompatible and now the government can sue and be sued for the acts of its servants and officers.
American law Under the American law the government was not now governed by the Federal Torts Claims Act 1946.
In in India the maxim the king can do no wrong was never fully accepted. Absolute immunity of the government was not recognised in the Indian legal system in the past. According to Manu it was the duty of the king to uphold the law as he himself was subject to laws like any other citizens.
Constitutional provisions
Under article 294 (b) of the constitution the liability of the Union government or a state government may arise out of any contract or otherwise. The word ‘otherwise’ means in respect of any tortious liability .
Before the commencement of the constitution Hari Bhanji case clearly and unequivocal propounded that acts of the government could fall either outside or within the municipal law and it was only the former which were not within the cognizance of municipal law and no action would lie in respect of such acts of the state. After the commencement of the constitution in State of Rajasthan versus Vidyawati A jeep was owned and maintained by the state of Rajasthan for the official use of the collector of a district. Once the driver of the Jeep was bringing back from the workshop after repairs. By his rash and negligent driving of the driver a pedestrian was locked down. The driver and the state was sued for damages. A constitution bench of the Supreme Court held the state vicariously liable for the rash and negligent act of the driver. This judgement was contradicted in Kasturi Lal Ralia Ram Jain versus state of UP and efficacy of the law laid down in Vidyawati was considerably watered down by the court. In railway Board versus Chandrima Das the efficacy of Kasturi Lal as a binding precedent has been considerably eroded in the light of subsequent decisions. The theory of sovereign power which was propounded in Kasturi Lal case has yielded new theories and was no longer available in a welfare state. It can be noted that the functions of the government in a welfare state are manifold and all of them cannot be said to be the activities relating to the exercise of sovereign power.
Comment -The principal which emerges is that if it is the function involving ‘sovereign’ function the state cannot be held liable but if it is a non sovereign function the state can be held liable. The difficulty lies in formulating a definite test to decide to which criteria the act belongs.
The recent judicial trend is in favour of holding the state liable in respect of tortious act committed by its servants.

By Rusha Mukherjee

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