Law of Torts: Vicarious Liability of State

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The degree to which the government should be responsible for the torts performed by its officials is a difficult issue, particularly in developing countries with growing State activities. The Government’s responsibility under tort is regulated by the principles of public law derived from the British Common Law and the constitutional provisions. The whole theory of the State’s Vicarious Liability for the torts perpetrated by its employees is based on two principles, namely-

  • Respondent Superior
  • Qui facit per alium facit per se 

Vicarious Liability

Usually we assume that the person himself gets punished if he commits any wrong. But under the Law of Torts, there is a concept titled Vicarious Liability. Under Vicarious Liability, a person is held liable for the acts of another. The constituents of Vicarious Liability are as follows –

  1. There should be some relationship between the person who committed a wrong and the other person.
  2. Both the persons should be involved in the joint activity.
  3. The wrongful act must be related to the relationship in a certain way.
  4. The wrong should be done within the course of employment.

Vicarious Liability is related to the Legal maxim Qui facit per alium facit per se” which means that “he who acts through another does the act himself.”

Principal and Agent

There are some constituents to fulfill this relationship. We can understand about this relationship from the following points –

  • There must be some authority assigned by principal to his agent which must be an apparent authority.
  • Authority may either be expressed or implied.
  • Agent must act within the course of employment

Master and Servant

To make the master liable there are two constituents to fulfill –

  • The act should be committed by the servant
  • The servant should have committed the act in the course of employment

It relies upon the legal maxim Respondent Superior whichmeans that the superior should be held responsible for the acts done by his subordinate.

Servant and Independent Contractor

Even though both the servant and the independent contractor are employed under the same master, there is some difference on the relationship between both of them with the master which arises due to the following reasons –

  • A servant is involved under a contract of services but
  • An independent contractor is involved under a contract for services
  • Independent contractor is not subject to the control of master
  • The liability of the master for the wrongs committed by his servant is more than the master’s liability in respect of wrongs committed by an independent contractor.

Vicarious Liability of State

Under Vicarious Liability it was conveyed that an individual is liable for the acts of another.

This was stated by the Judiciary which is a part of the State/ Government. This gives rise to a question –

  • What if the Government’s employees have done any wrongful act resulting in damage to others?

The answer for this question is the Vicarious Liability of State. Vicarious Liability of State got evolved by the East India Company in 1858. But the article 300 came into effect from 1950.

In India, while there is no clear law dealing with the vicarious liability of the State, Article 300 of the Indian Constitution specifies that the union of India or the Government of State can sue and be sued like any ordinary person. Vicarious Liability of state is also known as the tortious liability of the Government. State’s liability for the tortious actions of its employees is called as tortious liability of the State. State is liable for the acts of negligence, wrongful execution and omission or commission either voluntarily or involuntarily.

In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –

  1. Sovereign functions
  2. Non-Sovereign functions

Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the wrongful acts of its employees. For example, functions like defence activities, preserving armed forces, maintaining peace and war, diplomacy are some of the sovereign functions for which the state is not liable.

Non Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.

Origin

The origin of this state liability was started around medieval period when the proverb Res Non-Potest Peccare, meaning- the king can do no wrong, was started to lose its importance in the view of the public. After the 18th century, new industries and democracies have emerged which considered the acts of authorities under judicial search/study so that justice can be rendered to the persons who have suffered from the illegal acts of the authorities. Even the State’s responsibilities have been increased, so the Crown Proceedings Act was formulated in 1947. With this act, the crown was also made liable as much as the private individual.

Evolution in India

In England it was theCrown Proceedings Act, 1947 by which the state was made liable, but in India there was no statute for the liability of the state. So this law got evolved by the East India Company much prior to 1858.

Article 300 gave the right to people to sue the Government. But this article came into effect in 1950 i.e., after the adaptation of the Constitution.  Similar provisions are present under Article 176 of the Government of India Act, 1935 and also under Articles 35 and 65 in the Government of India Act 1915 and 1858 respectively.

Justification for the liability

There are many reasons to say that the vicarious liability of state is justified –

  • The state is the one which is financially better.
  • Government motivates its employee to take reasonable care in order to avoid accidents which may cause some danger to the third person. This motivation is because the Government is liable to pay any compensation for the acts of the employee.
  • State gets some profits by the acts of the employee. So, it should hold up losses incurred by the employee’s acts.
  • All the acts done by the employee in the course of employment are done under the State’s order. So, ultimately the acts are the State’s own acts.
  • As the State has the power to appoint and dismiss its employees, it is the duty of the State to check the work done by its employees.

Landmark cases

  • Peninsular and Oriental Steam Navigation Company v.  Secretary of State for India

This case is a pre-constitution case which prescribed the difference between sovereign and non- sovereign functions of the state.

The simple details in this case are that the company’s servant was on his way to Calcutta in a carriage pulled by a couple of horses. An accident took place when the wagon was travelling through the Government’s dockyard. Some of the workers of the Government Dockyard were carrying heavy iron rods to repair a steamer. However these workers dropped the iron rods, the noise of which affected one of the horses of the Plaintiff.

The company filed a suit against the Secretary of State for India to get relief for the damages. The Supreme Court of Calcutta held that the Secretary of State is liable for the damages. This case is the first case which brought upon the difference between sovereign and Non- sovereign functions of the state. As the maintenance of Dockyard is a non- sovereign function, Government was held liable.

  • State of Rajastan v. Vidyawati

Facts of the case are that a person named Lokumal was employed by the State of Rajasthan as a temporary driver for a Government car. After the completion of the repairs for car, during his return from the workshop, he knocked down a citizen named Jagdishlal (Plaintiff). Jagdishlal was severely injured and he died subsequently.

The plaintiff’s wife (widow) named Vidyawati and her minor daughter, through her mother as next friend, sued Lokumal and the State of Rajasthan for the relief.

Supreme Court held that the State was liable to pay the damages incurred as the act of driver was not a sovereign function.

  • Kasturilal Ralia Ram v. State of UP

Facts of this case are that the Plaintiff was arrested by the UP police officers on suspicion of having stolen property. On further investigation a huge quantity of gold was found and the same was seized by the police officials. Finally, he was released, but the gold was not returned to him as the Head Constable in charge of the malkhana absconded with the gold.  The Plaintiff then sued the State of UP to return his gold or to pay damages for the same.

Supreme Court said that, it is the negligence of the police officers in dealing with the Plaintiff’s property and is violative of the UP Police Regulations.

But the court finally contended that the State is not liable to pay because the police officers acted negligently while they are executing their duty in arresting a person. These powers like arresting a person and seizing property are sovereign powers. The contention of the Supreme Court was based on the statutory power and the act done in exercise of the sovereign function.

  • Nilabati Behera v. State of Orissa

In this case, Smt. Nilabati Behera, Plaintiff sent a letter to the Supreme Court stating that her 20 year-old son named Suman Behera died under police custody after being severely injured.  The Petitioner claimed compensation for the violation of her son’s right under Article 21. Police had arrested him for theft and he was detained at a police outpost. On the very next day, his dead body was found near the railway track. The Plaintiff strongly claimed that his death was the result of injuries inflicted by police.

The Supreme Court stated that there is no evidence regarding the search by the police for Suman Behera. There could also have been a possibility where the police reached much later to take charge of the body when the police were informed by the railway men. Doctor also attested that the injury on the body of deceased was due to a blunt object which may be a lathi. Finally, the State of Orissa was sued to provide compensation of Rs.1,50,000 to the petitioner and Rs.10,000 to the Supreme Court’s Legal Aid Committee. The Supreme Court also ordered the State of Orissa to commence criminal proceedings against the persons who killed Suman Behara.

Conclusion

Before 1858, there was no legislation regarding the liability of Government for the wrongful acts of its subjects.  The decision taken to formulate legislation for this purpose is indeed superior. As our nation is a sovereign, secular and democratic nation, this legislation should be there in order to protect all the above said words.

It can be noted that the theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past, the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The U.S. “voting right model” can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the individual from violating their rights by statute.

Author: Chidige Sai Varnitha from Damodaram Sanjivayya National Law University.

Editor: Avani Laad from Symbiosis Law School, Pune.


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