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Vicarious Liability of State in Torts

Vicarious Liability of State in Torts
Vicarious Liability of State in Torts


Position in England

Common Law Immunity

Traditionally, under Common Law in England, the Crown enjoyed immunity from being sued in tort for wrongs committed by its servants, whether authorised or not. Additionally, there was no liability for the head of a department or other superior officials for acts of their subordinates, as their relationship was not viewed as that of a master and servant. 

Instead, they were considered fellow servants. This meant that individual wrongdoers were personally liable, without the ability to use the defence of orders from the Crown or state necessity. Consequently, while an ordinary master was vicariously liable for the actions of their servant, the government was not liable for torts committed by its servants.

Evolution of Liability

With the expansion of the State's functions, especially its role as one of the largest employers in England, this immunity clashed with justice demands. To address this, various measures were adopted. The Crown began defending actions against its servants for torts committed in the course of their employment.

Judgments against Crown servants were satisfied from the Treasury as an act of grace. Often, a nominal defendant was identified by the Treasury Solicitor if the actual wrongdoer could not be determined.

Crown Proceedings Act, 1947

The legal landscape changed significantly with the enactment of the Crown Proceedings Act in 1947. This legislation made the Crown liable for torts committed by its servants, akin to the liability of a private individual. Section 2(1) of the Act outlined the Crown's liability in tort, removing the traditional immunity.


Position in India

Constitutional Provision

In contrast to England's statutory framework, India lacks specific legislation addressing the liability of the State. Article 300 of the Indian Constitution stipulates the State's capacity to sue and be sued, mirroring the legal capacity of the Dominion of India and corresponding provinces or states pre-constitution enactment.

Precedents and Interpretation

Pre-Constitution laws, such as Sec. 176 of the Government of India Act, 1935, set the precedent for State liability.

Court cases, like Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, played a pivotal role in establishing the parameters of State liability based on whether acts were sovereign or non-sovereign in nature.

Sovereign and Non-Sovereign Functions

The distinction between sovereign and non-sovereign functions determines the State's liability. Acts done in the exercise of sovereign functions typically do not incur liability, while those performed in non-sovereign capacities may hold the State accountable.

This principle has been upheld in various judicial decisions, emphasising the delegation of sovereign powers as a key factor.

Contemporary Cases

Recent cases in India, such as those involving police actions during protests or seizures of property, continue to shape the interpretation of State liability.

The application of legal principles, including the delegation of statutory powers and the nature of governmental functions, remains central to determining liability.

Reduction of Kasturi Lal's Influence

While the Supreme Court's ruling in Kasturi Lal's case remains valid, its practical impact has been significantly diminished by subsequent judicial decisions. Without explicitly overturning Kasturi Lal or addressing it directly, the court has deviated from its principles.

In situations where the State would have previously been exempted from liability under Kasturi Lal, it has now been held liable for loss or damage to property or persons.

State as Bailee

When property is in the possession of state officials, it is considered a bailment, with the State acting as the bailee. In cases such as State of Gujarat v. Memon Mahomed, the Supreme Court ruled that the State, having seized property, had a duty either to return it or compensate the owner.

Similarly, in Smt Basava v. State of Mysore, where stolen property was lost while in police custody, the State was held liable for failing to prove due care and caution in its custody.


Fundamental Rights and Sovereign Immunity

The Supreme Court, in cases like Peoples Union for Democratic Rights v. State of Bihar, has affirmed the State's liability to compensate for deaths or injuries resulting from violations of fundamental rights under Article 21 of the Constitution.

Compensation was awarded to victims of police actions, such as firing on peaceful gatherings, in cases like Sabastian M. Hongray v. Union of India and Bhim Singh v. State of J. & K.

Various cases, including Rudal Sah v. State of Bihar, highlight the Court's recognition of State liability for wrongful detention or denial of liberty. Compensation was awarded to individuals wrongfully detained or denied their liberty, reinforcing the State's obligation to uphold constitutional rights and provide redress for violations.


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