Constitutional Torts Under Article 300 of the Constitution Of India

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. Thus the Constitution makes the Union and the States as juristic persons capable for owning and acquiring property, making contracts, carrying on trade or business, bringing and defending legal action, just as private individuals. The legalpersonality of the Union of India, or a State of Indian Union is thus placed beyond doubt by the express language of Article 300.

Article 300 (1) provides that the Government of India may be sued in relation to its affairs in the like case as the Dominion of India, subject to any law which may be made by Act of Parliament. The Parliament has not made any law and therefore the question has to be determined as to whether the suit would lie against the Dominion of India before the Constitution came into force. Thus, so long as the Parliament or the State Legislature do not enact a law on the point, the legal position in this respect is the same as existed before the commencement of the Constitution.

Before present Constitution came into force the East India Company, and after Government of India Act, 1858, which transferred the Government of India to Her Majesty with its rights and liabilities, the Secretary of State Council were liable for the tortuous acts of their servants committed in the course of their enjoyment.

Torts under The Constitution: Article 300

Article 300 (1) provides that the Government of India may be sued in relation to its affairs in the like case as the Dominion of India, subject to any law which may be made by Act of Parliament. The Parliament has not made any law and therefore the question has to be determined as to whether the suit would lie against the Dominion of India before the Constitution came into force. Thus, so long as the Parliament or the State Legislaturedo not enact a law on the point, the legal position in this respect is the same as existed before the commencement of the Constitution.

Before present Constitution came into force the East India Company, and after Government of India Act, 1858, which transferred the Government of India to Her Majesty with its rights and liabilities, the Secretary of State Council were liable for the tortuous acts of their servants committed in the course of their enjoyment.

The Supreme Court held that the Secretary of State for India was liable for the damages caused by the negligence of Government servants, because the negligent act was not done in the exercise of a sovereign function. The Court drew a distinction between acts done in exercise of "sovereign power" and acts done in the exercise of "non-sovereign power" that is, acts done in the conduct of undertakings which might be carried on by private person—individuals without having such power.

In State of Rajasthan v. Vidyawati[1], the driver of a jeep owned and maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly andnegligently while bringing it back from the workshop after repairs and knocked down apedestrian and fatally injured him. As a result of the injuries the pedestrian died. Hiswidow sued the State of Rajasthan for damages. The Supreme Court held that the Statewas liable and awarded damages. The accident took place while the driver was bringing itback from the workshop to the Collector's residence. It cannot be said that he wasemployed on a task which was based on delegation of sovereign or governmental powers of the State. His act was not an act in the exercise of a sovereign function. The Court saidthat the employment of driver of a jeep car for the use of a civil servant was an activity which was not connected in any manner with the sovereign power of the State at all.

The Court approved the distinction made in Steam Navigation Company's case between the sovereign function, and the non-sovereign function of the State. However, Sinha, C. J., made an important observation in Vidyawati's case.

In India ever since the time of 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. InKasturi Lai v. State U. P[2]. a person was taken into custody on suspicion of being in possession of stolen property and taken to police station. His property including certain quantity of gold and silver was taken out from him and kept in the Malkhana till the disposal of the case. The gold and silver was misappropriated by a police constable who fled to Pakistan. The appellant sued the State of Uttar Pradesh for return of the gold and silver, and in the alternative claimed damages for loss caused by negligence of the Meerutpolice. The State contended that no liability would accrue for acts committed by a public servant where such acts were related to the exercise of sovereign power of the State. The Supreme Court held that the State was not liable. In the Judgment Chief Justice Gajendragadkar said that "If a tortuous act committed by a public servant gives rise to a claim for damages, the question to ask is, was the tortuous act committed by a public servant in discharge of statutory functions which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant. If the answer is in the affirmative the action for damages will not lie. On the other hand, if the tortious act has been committed by a public servant in the discharge of duties assigned to him not by virtue of the delegation of any sovereign powers, an action for damages would lie." The Court held that the tortious act of the police officers was committed by them in discharge of sovereign powers and the State was therefore not liable for the damages caused to the appellant.

In N. Nagendra Rao & Co. v. State of A.P[3],the Supreme Court has held that when due to the negligent act of the officers of State a citizen suffers any damage the State will be liable to pay compensation and the principle of sovereign immunity of State will not absolve him from this liability. The court held that in the context of modern concept of sovereignty the doctrine of sovereign immunity stands diluted and the distinction between sovereign and non-sovereign functions no longer exists. The Court noted the dissatisfactory condition of the law in this regard and suggested for enacting appropriate legislation to remove the uncertainty in this area. The Supreme Court held that the State was liable vicariously for the negligence committed by its officers in discharge of public 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 concept of sovereignty has undergone a considerable change in the modern times and the line of distinction between sovereign and non-sovereign powers no longer survives. No civilized system can permit an executive as it is sovereign. The concept of public interest has changed with structural change in the society. No legal system can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without remedy. The need of the State to have extraordinary powers cannot be doubted. But it cannot be claimed that the claim of the common man be thrown out merely because the act was done by its officer even though it was against law and negligence. Need of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. In a welfare State, functions of the State are not only defense of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of the people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and unalienable functions of a constitutional Government, the State cannot claim any immunity.

The Court observed that Sovereignty now vests in the people. The legislature, the executive and the judiciary have been created and constituted to serve the people.

In Peoples Union for Democratic Rights v. Police Commissioner, Delhi PoliceHeadquarters[4] one labourer was taken to the police station for doing some work. Whenhe demanded wages he was severely beaten and ultimately succumbed to the injuries. Itwas held that the State was liable to pay compensation to the family of the deceased labourer.

In yet another case, Common Cause, a Registered Society v. Union of India[5] the Supreme Court again examined the whole doctrine and rejected the sovereign immunity rule. The Court held that the rule of State liability as laid down in P. & O. Steam Navigationcase is very outmoded. It said that in modern times when the State activities have been considerably increased it is very difficult to draw a line between its sovereign and non-sovereign functions. The increased activities of the State have made a deep impression on all facets of citizens' life, and therefore, the liability of the State must be made co-extensive with the modern concept of a welfare State. The State must be liable for all tortuous acts of its employees, whether done in exercise of sovereign or non-sovereign powers. In the process of judicial interpretation Kasturilal's case has paled into insignificance and has now no longer binding value.

In State of A.P. v. Challa Ramkrishna Reddy known as prisoners murder case the Supreme Court held that in the process of judicial advancement Kasturilal's case has paled into insignificance and no longer of any binding value. In this case a prisoner who had informed the jail authorities that he apprehended danger to his life but no action was taken on this information and no measures were taken for his safety and he was killed in the prison.

It was also found that a police officer was a party to the conspiracy to kill the prisoner which was hatched in the prison. The Court held that in case of violation of fundamental right the defence of sovereign immunity which is an old and archaic defence cannot be accepted and the government and the police are liable to compensate the victim.

The Court said that the personal liberty should be given supremacy over sovereign immunity. Such rights cannot be defeated by pleading the old and archaic defence ofsovereign immunity which has been rejected in several cases by the Supreme Court.

The decisions of the Supreme Court in the cases of personal liberty clearly show that the doctrine of state immunity is not available. In Bhim Singh v. State of Jammu and Kashmir[6] the Supreme Court awarded a sum of Rs. 50,000 to the petitioner as compensation for violation of his fundamental right of personal liberty under Art. 21 of the Constitution. The petitioner who was an MLA was illegally arrested and detained in police custody and deliberately prevented from attending the session of the Legislative Assembly.

In State of Orissa v. Padmaloch[7] the plaintiff filed a suit for damages against the State of Orissa for injuries caused to him by the Military Police. The fact was that in apprehension of danger of attack on the office of the S. D. O. and its properties by anunlawful mob which resorted to violence, there was police cordoning in the O. M. P. under the control of supervisory officers and magistrates without any orders from the magistrate or higher authorities the police personnel assaulted members of the mob as a result of which the plaintiff received injuries. The Court held that the injuries caused to the plaintiff by the police personnel with a view to disperse the unlawful crowd were in exercise of the sovereign function of the State. As the posting of Police for the protection of its officers and properties was in exercise of the delegated sovereign function, the fact that the police committed excess in discharge of their function without authority could not take away the illegal act from the purview of delegated sovereign function. The State was held to be not liable for the police.

In Satyawati v. Union of lndia[8], an Air Force vehicle was carrying hockey team to Indian Air Force Station to play a match against a team of Indian Air Force. After the match was over, the driver was going to park the vehicle when he caused the fatal accident by his negligence. It was argued that it was one of the functions of the Union of India to keep the army in proper shape and the tune and that hockey team was carried by the vehicle for the physical exercise of the Air Force personnel and therefore the Government was not liable. The Court rejected this argument and held that the carrying of hockey team to play a match could by no process of extension be termed as exercise of sovereign power and the Union of India was therefore liable for damages caused to the plaintiff. 

In other important cases like In Rooplal v. Union of India,[9] where the military jawans in the employment of the Union of India lifted the drift wood belonging to the plaintiff and carried it through military vehicles for purposes of camp fire and the fuel was used by them for their requirements. The Court held that the act was done by jawans in the course of theemployment and the Government was liable for damages. Even assuming that the jawansfound the wood lying on the river side and took them away bona fide thinking that itbelonged to the Government, the State was liable to compensate the plaintiff whenultimately it was found to belong to the plaintiff. Reasoning was that illegal act in carrying away the fire wood could be committed by the military jawans by carrying it through any other truck which any private person could do. In another case of Baxi Amrik Singh v. Union of India[10] an army driver while driving an army truck caused accident to the plaintiff. At the time of accident the driver was deputed on duty for checking military personnel on duty for the whole day. The Court held that the accident was caused in discharge of the sovereign function of the State because only military personnel could be deputed to check the military personnel on duty. It was for this purpose that the army vehicle was placed at the disposal of the person deputed for duty and he himself drove the vehicle to go from place to place. This function cannot be entrusted to private individuals.

In Union of India v. Sugrabai,20 one Mr. Abdul Majid was knocked down by a military truck which was engaged in carrying a machine to the School of Artillery. The machine was sent for repairs to military workshop and after repairs it was being transported to the School ofArtillery. It was a machine for locating enemy guns which was meant for giving training to military officers. The Government Pleader argued that training of army personnel was a sovereign function which in turn required maintenance of machines, and maintenance of machines required that they should be kept in proper repair, and that work of repairing required its transportation from workshop to military school and therefore transporting was a sovereign function.

The Court rejected this argument that every act which is necessary for the discharge of a sovereign function involves an exercise of sovereign power. Many of these acts do not require to be done by the State through its servants, for example supply of food to army which may be transported in trucks belonging to private persons. The Court said that though the transportation of the machine from the workshop to the military school was necessary for the training of army personnel but it was not necessary to transport it though a military truck driven by defence personnel. The machine could have been carried through a private carrier without any material detriment for the discharge of, by the State of its sovereign function of maintaining army personnel.

But in this case the court also observed that in certain cases transporting of machine by a military truck can be regarded as a sovereign function, e. g., carrying machine for the immediate use of army engaged in active military duty.

Conclusion:

The rule of liability of the State for torts of its servants as laid down in the SteamNavigation's case is very out-moded. In the modern age when the activities of the Statehave vastly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State. The increased activities of the State have made a deep impact on all facts of an individual's life, and therefore, the liability of the State should accordingly be made co-extensive with its modern role of a welfare State and not beconfined to the era of individualism.

[1] AIR 1962 SC 933

[2] AIR 1965 SC 1039

[3] (1994) 6 SCC 2005

4. (1989) 4 SCC 730.

[5]  AIR 2000 SC 2083

[6]  AIR 1986 SC 494

[7]  AIR 1975 Orissa 41

[8]  AIR 1997 Delhi 98

[9] AIR 1972 J&K 22

[10] (1972) Punj. LR 1.