constitutional torts under article 300 of the constitution of india.doc

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Constitutional Torts Under Article 300 of

the Constitution Of India

By : Sarica Ashok Reddyon 30 June 2011 Print this

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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. hus the Constitution

ma!es the Union and the States as "uristic #ersons ca#able for o$ning and

ac%uiring #ro#erty, ma!ing contracts, carrying on trade or business, bringing and

defending legal action, "ust as #rivate individuals. he legal#ersonality of the Union
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of India, or a State of Indian Union is thus #laced beyond doubt by the eress

language of Article 300.

Article 300 '() #rovides that the Government of India may be sued in relation

to its affairs in the li!e case as the *ominion of India, sub"ect to any la$ $hich

may be made by Act of +arliament. he +arliament has not made any la$ and

therefore the %uestion has to be determined as to $hether the suit $ould lie against

the *ominion of India before the Constitution came into force. hus, so long as the

+arliament or the State Legislature do not enact a la$ on the #oint, the

legal #osition in this res#ect is the same as e&isted before the commencement of

the Constitution.

efore #resent Constitution came into force the -ast India Com#any, and

after Government of India Act, (/, $hich transferred the Government of India

to er 1a"esty $ith its rights and liabilities, the Secretary of State Council $ere

liable for the tortuous acts of their servants committed in the course of theiren"oyment.

Torts under The Constitution: Article 300

Article 300 '() #rovides that the Government of India may be sued in relation

to its affairs in the li!e case as the *ominion of India, sub"ect to any la$ $hich

may be made by Act of +arliament. he +arliament has not made any la$ and

therefore the %uestion has to be determined as to $hether the suit $ould lie against

the *ominion of India before the Constitution came into force. hus, so long as the

+arliament or the State Legislaturedo not enact a la$ on the #oint, thelegal #osition in this res#ect is the same as e&isted before the commencement of

the Constitution.

efore #resent Constitution came into force the -ast India Com#any, and

after Government of India Act, (/, $hich transferred the Government of India

to er 1a"esty $ith its rights and liabilities, the Secretary of State Council $ere

liable for the tortuous acts of their servants committed in the course of their

en"oyment.

he Su#reme Court held that the Secretary of State for India $as liable for

the damages caused by the negligence of Government servants, because the negligentact $as not done in the e&ercise of a sovereign function. he Court dre$ a

distinction bet$een acts done in e&ercise of "sovereign #o$er" and acts done in the

e&ercise of 2nonsovereign #o$er" that is, acts done in the conduct of underta!ings

$hich might be carried on by #rivate #erson4individuals $ithout having such

#o$er.


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In State of Rajasthan v. Vidyawati[1], the driver of a "ee# o$ned and maintained

by the State of 5a"asthan for the official use of the Collector of a district, drove it

rashly andnegligently $hile bringing it bac! from the $or!sho# after re#airs and

!noc!ed do$n a#edestrian and fatally in"ured him. As a result of the in"uries the

#edestrian died. is$ido$ sued the State of 5a"asthan for damages. he Su#reme

Court held that the State$as liable and a$arded damages. he accident too! #lace

$hile the driver $as bringing itbac! from the $or!sho# to the Collector6s residence.

It cannot be said that he $asem#loyed on a tas! $hich $as based on delegation of

sovereign or governmental #o$ers of the State. is act $as not an act in the e&ercise

of a sovereign function. he Court saidthat the em#loyment of driver of a "ee# car for

the use of a civil servant $as an activity $hich $as not connected in any manner $ith

the sovereign #o$er of the State at all.

he Court a##roved the distinction made in Steam Navigation

Company's case bet$een the sovereign function, and the nonsovereign function of

the State. o$ever, Sinha, C. 7., made an im#ortant observation in Vidyawati's case.

In India ever since the time of -ast India Com#any, the sovereign has been held

liable to be sued in tort or in contract, and the Common la$ immunity never o#erated

in India. InKasturi Lai v. State . ![2]. a #erson $as ta!en into custody on

sus#icion of being in #ossession of stolen #ro#erty and ta!en to #olice station. is

#ro#erty including certain %uantity of gold and silver $as ta!en out from him and

!e#t in the 1al!hana till the dis#osal of the case. he gold and silver $as

misa##ro#riated by a #olice constable $ho fled to +a!istan. he a##ellant sued the

State of Uttar +radesh for return of the gold and silver, and in the alternative claimed

damages for loss caused by negligence of the 1eerut#olice. he State contended that

no liability $ould accrue for acts committed by a #ublic servant $here such acts$ere related to the e&ercise of sovereign #o$er of the State. he Su#reme

Court heldthat the State $as not liable. In the 7udgment Chief 7ustice

Ga"endragad!ar said that 2If a tortuous act committed by a #ublic servant gives rise

to a claim for damages, the %uestion to as! is, $as the tortuous act committed by a

#ublic servant in discharge of statutory functions $hich are referable to, and

ultimately based on the delegation of the sovereign #o$ers of the State to such

#ublic servant. If the ans$er is in the affirmative the action for damages $ill not lie.

8n the other hand, if the tortious act has been committed by a #ublic servant in the

discharge of duties assigned to him not by virtue of the delegation of any sovereign

#o$ers, an action for damages $ould lie.2 he Court held that the tortious act of the

#olice officers $as committed by them in discharge of sovereign #o$ers and theState $as therefore not liable for the damages caused to the a##ellant.

InN. Nagendra Rao Co. v. State of #.!93:,the Su#reme Court has held

that $hen due to the negligent act of the officers of State a citi;en suffers any

damage the State $ill be liable to #ay com#ensation and the #rinci#le of sovereign

immunity of State $ill not absolve him from this liability. he court held that in the
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conte&t of modern conce#t of sovereignty the doctrine of sovereign immunity

stands diluted and the distinction bet$een sovereign and nonsovereign functions no

longer e&ists. he Court noted the dissatisfactory condition of the la$ in this regard

and suggested for enacting a##ro#riate legislation to remove the uncertainty in this

area. he Su#reme Court held that the State $as liable vicariously for the negligence

committed by its officers in discharge of #ublic 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 conce#t of sovereignty has undergone a considerable

change in the modern times and the line of distinction bet$een sovereign and non

sovereign #o$ers no longer survives.


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the State must be made coe&tensive $ith the modern conce#t of a $elfare State.

he State must be liable for all tortuous acts of its em#loyees, $hether done in

e&ercise of sovereign or nonsovereign #o$ers. In the #rocess of "udicial

inter#retationKasturi$a$'s case has #aled into insignificance and has no$ no longer

binding value.

In State of #.!. v. Cha$$a Ram+rishna Reddy !no$n as #risoners murder case the

Su#reme Court held that in the pro&ess of judi&ia$ advan&ement Kasturi$a$'s &ase has

pa$ed into insignifi&an&e and no $onger of any inding va$ue. In this case a #risoner

$ho had informed the "ail authorities that he a##rehended danger to his life but no

action $as ta!en on this information and no measures $ere ta!en for his safety and

he $as !illed in the #rison.

It $as also found that a #olice officer $as a #arty to the cons#iracy to !ill the

#risoner $hich $as hatched in the #rison. he Court held that in case of violation of

fundamental right the defence ofsovereign immunity $hich is an old and archaicdefence cannot be acce#ted and the government and the #olice are liable to

com#ensate the victim.

he Court said that the #ersonal liberty should be given su#remacy over sovereign

immunity. Such rights cannot be defeated by #leading the old and archaic defence

ofsovereign immunity $hich has been re"ected in several cases by the Su#reme

Court.

he decisions of the Su#reme Court in the cases of #ersonal liberty clearly sho$

that the doctrine of state immunity is not available. In-him Singh v. State

of ammu and Kashmir[6]the Su#reme Court a$arded a sum ofRs. /0,000 to the#etitioner as com#ensation for violation of his fundamental right of #ersonal liberty

under Art. >( of the Constitution. he #etitioner $ho $as an 1LA $as illegally

arrested and detained in #olice custody and deliberately #revented from attending the

session of the Legislative Assembly.

In State of *rissa v.!adma$o&h[7]the #laintiff filed a suit for damages against the

State of 8rissa for in"uries caused to him by the 1ilitary +olice. he fact $as that in

a##rehension of danger of attac! on the office of the S. *. 8. and its #ro#erties by

anunla$ful mob $hich resorted to violence, there $as #olice cordoning in the 8.

1. +. under the control of su#ervisory officers and magistrates $ithout any orders

from the magistrate or higher authorities the #olice #ersonnel assaulted members ofthe mob as a result of $hich the #laintiff received in"uries. he Court held that the

in"uries caused to the #laintiff by the #olice #ersonnel $ith a vie$ to dis#erse the

unla$ful cro$d $ere in e&ercise of the sovereign function of the State. As the

#osting of +olice for the #rotection of its officers and #ro#erties $as in e&ercise of

the delegated sovereign function, the fact that the #olice committed e&cess in

discharge of their function $ithout authority could not ta!e a$ay the illegal act from
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the #urvie$ of delegated sovereign function. he State $as held to be not liable for

the #olice.

In Satyawati v. nion of $ndia[8], an Air ?orce vehicle $as carrying hoc!ey team

to Indian Air ?orce Station to #lay a match against a team of Indian Air ?orce.

After the match $as over, the driver $as going to #ar! the vehicle $hen he caused the

fatal accident by his negligence. It $as argued that it $as one of the functions of the

Union of India to !ee# the army in #ro#er sha#e and the tune and that hoc!ey team

$as carried by the vehicle for the #hysical e&ercise of the Air ?orce #ersonnel and

therefore the Government $as not liable. he Court re"ected this argument and held

that the carrying of hoc!ey team to #lay a match could by no #rocess of e&tension

be termed as e&ercise of sovereign #o$er and the Union of India $as therefore liable

for damages caused to the #laintiff.

In other im#ortant cases li!e InRoop$a$ v. nion of )ndia,[9]where the military

"a$ans in the em#loyment of the Union of India lifted the drift $ood belonging tothe #laintiff and carried it through military vehicles for #ur#oses of cam# fire and

the fuel $as used by them for their re%uirements. he Court held that the act $as

done by "a$ans in the course of theem#loyment and the Government $as liable for

damages. -ven assuming that the "a$ansfound the $ood lying on the river side and

too! them a$ay ona fide thin!ing that itbelonged to the Government, the State $as

liable to com#ensate the #laintiff $henultimately it $as found to belong to the

#laintiff. 5easoning $as that illegal act in carrying a$ay the fire $ood could be

committed by the military "a$ans by carrying it through any other truc! $hich any

#rivate #erson could do. In another case of-a/i #mri+ Singh v. nion of

)ndia[10]an army driver $hile driving an army truc! caused accident to the

#laintiff. At the time of accident the driver $as de#uted on duty for chec!ingmilitary #ersonnel on duty for the $hole day. he Court held that the accident $as

caused in discharge of the sovereign function of the State because only military

#ersonnel could be de#uted to chec! the military #ersonnel on duty. It $as for this

#ur#ose that the army vehicle $as #laced at the dis#osal of the #erson de#uted

for duty and he himself drove the vehicle to go from #lace to #lace. his function

cannot be entrusted to #rivate individuals.

In nion of )ndia v. Sugraai,01one 1r. Abdul 1a"id $as !noc!ed do$n by

a military truc! $hich $as engaged in carrying a machine to the School of Artillery.

he machine $as sent for re#airs to military $or!sho# and after re#airs it $as

being trans#orted to the School ofArtillery. It $as a machine for locating enemyguns $hich $as meant for giving training to military officers. he Government

+leader argued that training of army #ersonnel $as a sovereign function $hich in

turn re%uired maintenance of machines, and maintenance of machines re%uired that

they should be !e#t in #ro#er re#air, and that $or! of re#airing re%uired its

trans#ortation from $or!sho# to military school and therefore trans#orting $as a

sovereign function.
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he Court re"ected this argument that every act $hich is necessary for the discharge

of a sovereign function involves an e&ercise of sovereign #o$er. 1any of these acts

do not re%uire to be done by the State through its servants, for e&am#le su##ly of

food to army $hich may be trans#orted in truc!s belonging to #rivate #ersons. he

Court said that though the trans#ortation of the machine from the $or!sho# to the

military school $as necessary for the training of army #ersonnel but it $as not

necessary to trans#ort it though a military truc! driven by defence #ersonnel. he

machine could have been carried through a #rivate carrier $ithout any material

detriment for the discharge of, by the State of its sovereign function of maintaining

army #ersonnel.

ut in this case the court also observed that in certain cases trans#orting of

machine by a military truc! can be regarded as a sovereign function, e.

g., carrying machine for the immediate use of army engaged in active military duty.

Conclusion:

he rule of liability of the State for torts of its servants as laid do$n in

the Steam

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