Vicarious Liability of States

By | May 28, 2017
Introduction to Vicarious Liability of State

Rex non potest peccare (The king can do no wrong) is an ancient and fundamental principle of the English law which means that if a tort was committed by the king or the king’s servant in the course of employment, the injured had no right to sue the king under the vicarious liability. This immunity was only available in relation to torts, but not for breach of contract and recovery of property.

The courts in various decisions criticized this exemption, given to the king, opining that it was against the principles of equity, good conscience and justice. Hence, the British parliament passed, The Crown Proceeding Act, 1947 by abolishing the maxim, King can do no wrong. Now the king can be also be sued for his servants tortuous acts committed in their course of employment under the principle of Respondent Superior.

Position in India

In India, the crown assumed sovereignty of India in 1858 and took over the administration of India from the hands of the company. The act declared that the secretary of India in council to be a body corporate for the purpose of suing and being sued. This corporate was mentioned in Government of India Act, 1915 which declared in its section 32 stating that-

  1. The secretary of state in council may sue and be sued by the name of Secretary of State in council as a body corporate.
  2. Every person shall have the same remedies against the secretary of state in council as he might have had against the East India Company if the Government of India Act, 1858 and this act had not been passed.
  3. This provision was again mentioned in section 176(i) of the Government of India Act, 1935 thus:

The federation may sue or be sued by the name of the federation of India and the provincial governments may sue or be sued by the name of province and without prejudice to the subsequent provision of this chapter, may be, subject to any provisions which may be made by the act of the federation or provincial legislature enacted by virtue of powers conferred on that legislature by this act, sue or be sued, in relation to their respective affairs in the like case as the secretary of State for India in council might have sued or been sued in this act has not been passed.

Constitutional Perspective

This provision has been incorporated in Article 300 (i) of the Constitution of India:

The government of India may sue or be sued by the name of the union of India and the government of the 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 the domination of India and the corresponding Indian States might have sued or been sued if the constitution had not been enacted.

Neither the legislature of the states nor the parliament has made any law as contemplated by clause (1) of Article 300 of the Constitution of India. The present position is that the state would be liable for damages, if such suit could be filed against the corresponding province. 

Case Laws related government liability in tort 
The first leading case on the point is Peninsular and orientation steam navigation company v. Secretary of State for India-in-Council.

In this case, the servant of the plaintiff company were proceeding on a highway in Calcutta driving a carriage and passing by the Kidderpore dockyard which was a Government property. The servants were carrying a piece of iron funnel in the center of the road. Due to negligence on the part of the defendants servant the funnel fell down and its clang frightened the horse and it injured. The plaintiff sued the secretary of the state for India in council for the damage.

An act was brought for the recovery of the damage of Rs.350 against the secretary of the state for India in Council, as employer of the workmen. It was held that the maintenance of the dockyard was considered to be non sovereign function and as such the government was held liable. As the impugned act fell within the non- sovereign functions, the action was maintainable.

2nd Case Secretary of State v. Cockraft

It was held that maintenance of the military road is a sovereign function and the government is not liable for the negligence of its servant in stacking of gravel on a road which resulted in a carriage accident causing injuries to the plaintiff.

3rd Case State of Rajasthan v. Vidyawati

In this case, a temporary employee of Rajasthan government while driving a government jeep car from workshop after repairs knock down a pedestrian, by rash and negligent driving. The pedestrians sustained multiple injuries as a result of which he died. In the suit by his widow against the State of Rajasthan for damages, the Supreme Court held that the state was liable because the accident took place while the car was returning from workshop which was not an act in the exercise of sovereign function.

Submitted By – Prerana Anand

Editor @ Legal Bites

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