A critical analysis on vicarious liability of the state in India


The responsibility for another person’s actions falls on a person through vicarious liability. It frequently comes into play in master-servant interactions. Generally speaking, constitutional tort is a legal mechanism that allows the state to be held vicariously accountable for the actions of its agents. When one of our constitutional rights is violated, you can file a lawsuit to obtain compensation as a kind of legal recourse. The only exception to this rule is that if the act was carried out while performing official (government) duties, it cannot be held accountable.

It can be challenging to determine how much of the wrongdoing committed by government employees should be held accountable, especially in developing nations with expanding State involvement. The British Common Law’s public law principles and the Constitution’s provisions govern the Government’s liability under tort law. Two guiding concepts serve as the foundation for the entire notion of the State’s vicarious liability:

  • the wrongdoings committed by its personnel
  • Qui facit per alium facit per se

The genesis of constitutional law can be dated to the period when the popular mediaeval adage “Res Non-Potest Peccare,” which means “the king can do no wrong,” started to lose public favour. At that time, the king was regarded as the son of God. With the arrival and growth of new democracies and industries after the 18th century, it became crucial to subject actions taken with governmental power to judicial review so that those who suffered as a result of such actions may receive justice in appropriate time.


According to the dictum “The King can do no wrong” and the English Common Law, the King was not responsible for the wrongs committed by his or her employees. The Crown Proceedings Act of 1947 altered the position of the ancient Common law maxim in England, nevertheless. Previously, the King was immune from tort lawsuits for wrongs that were either directly approved by it or unintentionally done by its subordinates while performing their jobs. The Crown Proceedings Act was created in response to the growing state’s functions, and as a result, the crown is now as responsible for any wrongdoing carried out by its employees as a private person. Similar to this, the Federal Tort Claims Act of 1946 in America lays out the factors that largely determine whether or not the State is liable.

We do not have any statutory provisions specifying the liability of the State in India, unlike the Crown Proceedings Act, 1947 (England). The nature and character of the East India Company’s activities previous to 1858 have come into conflict with Indian law about the State’s liability for the tortious acts of its servants. In order to understand how this law, which is outlined in Article 300 of the Constitution, has evolved, it is necessary to trace its history. It is under Article 300 of The Constitution of India, 1950 that the right to initiate a lawsuit is enumerated because there is no legislation that stipulates the vicarious liability of the state for the wrongs committed by its servants.

The public has the right to sue the state under Art. 300. Comparable provisions were also present in the Government of India Act of 1935 under article 176, which has provisions similar to those in the Government of India Acts of 1915 and of 1858 under Articles 32 and 65, respectively, even though it entered into force after the establishment of the Constitution in 1950. “All people and bodies political shall and may have and take the same suits, for India as they could have done against the said Company,” read Article 65 of the Government of India Act of 1865. The East Indian Company was managed by the government after the company; hence the government’s obligations are comparable to those of the company prior to 1858.

In accordance with Clause (1) of Article 300 of the Constitution, the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State. Additionally, the Government of India or the Government of a State may sue or be sued in relation to their respective affairs in similar circumstances to those in which the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued. Because the culpability of the administration today directly follows that of the East India Company, one must ascertain the extent of the East India Company’s liability in order to comprehend the liability parameters of the administration today.

Pre-Constitution Judicial Decisions

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

The Supreme Court of Calcutta’s decision in the case of P. & O. Steam Navigation Co. v. Secretary of State serves as the starting point for a discussion of pre-Constitutional instances of the government’s tort culpability. According to the case’s guiding premise, neither the East India Company nor the State would be held accountable for any actions carried out while performing their respective sovereign duties. It drew a very definite line between the state’s sovereign and non-sovereign functions.

The case’s facts involved a servant of the plaintiff’s business travelling by horse-drawn carriage from Garden Reach to Calcutta. When the carriage passed through Kidderpore Dockyard, a government dockyard, the accident happened. For the purpose of repairing a steamboat, some employees of the Government Dockyard were lugging a bulky piece of iron. The men were moving down the middle of the road while carrying the iron rod.

The coachman of the plaintiff’s carriage slowed it down as it approached. Those in front and those behind tried to move to one side of the road, respectively, as the man carrying the iron tried to get out of the path. As a result, they lost time since the carriage approached them before they had left the middle of the road. When they see the horses and carriage, they became scared and immediately dropped the iron and fled. One of the plaintiff’s horses was hurt when the iron collapsed with a loud bang. This spooked the plaintiff’s horses, which then sprang forward forcefully and fell on the iron.

The Company sued the Secretary of State for India for damages when one of their horses was hurt due to the servants working for the Indian government’s incompetence. Because the negligent act was not carried out in the performance of a sovereign function, the Secretary of State for India was held accountable by the Supreme Court of Calcutta, presided over by Sir Barnes Peacock C. J. The Court distinguished between acts carried out in the course of undertakings that could be carried out by private persons without possessing such power and acts carried out in the exercise of “non-sovereign power.” Only in the situation of “non-sovereign functions” could the liability occur. The East India Company had two distinct personalities:

  • that of a sovereign state; and
  • that of a trade firm.

The Company’s liability could only apply to its business activities; it could not be held liable for anything it did while acting as a delegated sovereign. Since the plaintiff in this case suffered harm as a result of the defendant’s performance of a non-sovereign function—namely, the maintenance of the dockyard—that could be performed by any private person without the need for a delegation of sovereign authority, the government was held accountable for the employees’ torts. Anything done by the Secretary of State while acting in his or her official capacity was not subject to liability.

Nobin Chandra Dey v. Secretary of State for India

The Calcutta High Court adopted this notion of immunity for actions taken while performing sovereign duties in Nobin Chander Dey v. Secretary of State. In this case, the plaintiff claimed that the government had entered into a contract with him for the issuance of a licence for the sale of marijuana and had broken that contract. According to the evidence, the High Court determined that no contract violation had been established. Second, even if there was a contract, the action was barred since it was carried out as part of the exercise of sovereign authority.

Secretary of State v. Hari Bhanji

In this instance, the Madras High Court ruled that only state acts were immune from prosecution. Although the P & O Case judgement provided examples of scenarios where the immunity was applicable, it did not extend beyond acts of State. Acts of State were described as actions taken in the exercise of sovereign authority when the alleged act was purportedly carried out with the approval of municipal law and while acting within the bounds of legal authority. The mere fact that it is carried out by sovereign powers and is not an action that might potentially be taken by a private person does not displace the civil court’s jurisdiction. The Government may not be accountable for conduct related to public safety even though they are not acts of State, according to the Madras verdict in Hari Bhanji.

Post Constitution Judicial Decisions

State of Rajasthan v. Vidyawati

The Court held that the State’s liability in respect of the tortious act by its servant while acting within the scope of his employment and acting as such was similar to that of any other employer. The respondents filed a lawsuit for damages made by a State employee, and the case questioned whether the State was liable for the tortious act of its servant. In this case, it was decided that the State should be held accountable for torts caused by its employee while acting in his official capacity as an employee, just like any other employer.

The case’s facts can be briefly described as follows. The claim for damages in that instance was made by the heirs of a person who passed away in an accident brought on by the carelessness of the driver of a jeep that the government was maintaining for the Collector of Udaipur’s official usage while it was being returned from the shop after repairs. The Rajasthan High Court held that the State was responsible because it is in no better a position than the private sector in providing vehicles and employing drivers for its civil service. The Hon. Supreme Court made the following ruling in the aforementioned case: “State, like any other employer, is vicariously accountable for Act done in the course of employment but not in connection with sovereign powers of the State.”

In the aforementioned case, the Hon’ble Apex Court noted that the United Kingdom’s immunity of the crown was based on the outdated feudalistic notions of justice, specifically that the King was incapable of doing wrong, while approving the distinction made between the sovereign and non-sovereign function in Steam Navigation Co.’s case. In India, the aforementioned common law immunity never applied.

Kasturi Lal v. State of U.P.

The decision in this case held that the respondent’s employee did the act that gave rise to the current claim for damages while performing work-related duties. Additionally, such job fell under the umbrella of sovereign power. This absolved the state of all responsibility. In this instance, police officers had detained the plaintiff after suspecting him of having stolen stuff.

A significant amount of gold was discovered during the inquiry and was confiscated in accordance with the Code of Criminal Procedure. He was eventually freed, but the gold was never given back since the Head Constable in charge of the maalkhana, where the aforementioned wealth was kept, had fled with it. The plaintiff then filed a lawsuit against the State of UP seeking either the recovery of the gold or damages for the harm done to him. The lower courts determined that the involved police personnel had not properly cared for the gold that had been taken from the plaintiff as required by UP Police Regulations.

The trial court issued a ruling in the case, but the High Court overturned it on appeal. When the case reached the Supreme Court, the justices determined that the police officers had been careless when handling the plaintiff’s property and that they had not complied with the UP Police Regulations based on their evaluation of the pertinent facts.

The plaintiff’s claim was, however, denied by the Supreme Court on the grounds that “the police officers engaged in an act of carelessness while dealing with the property of Ralia Ram, which they had seized in the exercise of their statutory duties. The authorities to detain, search, and take property discovered with a person are granted to the designated officers by statute and are appropriately characterized as sovereign powers. The act was carried out in the ostensible exercise of a statutory power, which was the basis for the Kasturi Lal judgment’s second premise. Second, the deed was committed while carrying out a sovereign duty.

Nagendra Rao v. State of A.P.

In this decision, the Supreme Court ruled that the state would be responsible for compensating any damages suffered by a citizen as a result of the state’s officers acting carelessly, and that the state would not be exempt from this responsibility under the theory of sovereign immunity. The court concluded that the distinction between sovereign and non-sovereign functions is no longer valid within the notion of sovereignty as it is understood in the present world.

The court made note of the unsatisfactory state of the law in this area and recommended that suitable legislation be passed to end the ambiguity. The Supreme Court rejected the state’s argument and determined that the state was vicariously liable for the carelessness of its agents while they were performing a statutory public obligation. Regarding the state’s immunity based on its role as a sovereign, the court found that the traditional definition of sovereignty has undergone significant modernization and that the distinction between sovereign and non-sovereign powers is no longer valid.

An executive cannot exist in a civilized system because it is sovereign. Along with societal structural change, the idea of the public interest has evolved. Since it is wrong and unfair for a citizen to have his property taken from him without his consent due to the negligence of state agents, no legal system can elevate the state above the law. There is no question that the state requires extraordinary capabilities. However, it cannot be argued that the claim of the common man should be rejected just because the officer committed the unlawful act. To prevent the rule of law in a welfare state from being undermined, the necessity of the state, the responsibility of its officials, and the right of its citizens must be harmonized. In a welfare state, the state’s duties include more than just preserving law and order, administering justice, and defending the nation; they also include policing and regulating the behaviour of its citizens in nearly every area.

There is no longer a strong rational foundation for the distinction between sovereign and non-sovereign authorities. The court further ruled that sovereign immunity was never available if the state was not engaged in commercial or private activity and that it is also not available when its personnel have violated a citizen’s life or liberty without a valid legal justification.

The state is vicariously liable to pay damages in both situations. The doctrine of sovereign immunity is no longer applicable because the idea of sovereignty has undergone significant change. The people now hold the power of sovereign. The Indian Constitution was created and adopted by the people. The people have been the focus of the state’s creation and constitution, as well as its structure and functions.

Therefore, the state is responsible for the officers’ carelessness. Furthermore, the courts have frequently mandated that the Government compensate torture victims for violations of their fundamental rights, which are protected by Article 21 of the Constitution.

State of M.P. v. Chironji Lal

The court was presented with a new issue about the payment of damages for the loss brought on by the police’s unlawful and unjustified use of a lathi. It was claimed that the police intentionally used a lathi charge without a valid justification, causing damage to the plaintiff’s property. The argument that controlling processions and upholding peace and order are sovereign functions of the state led to the claim being rejected.

Satyawati Devi v. Union of India

The Delhi High Court ruled that transporting a hockey team to the Air Force Station in a military truck to play a game is not a sovereign function. In one instance, an Air Force vehicle was transporting the Indian Air Force Station hockey team to a game. The driver was preparing to park the car after the game when he carelessly caused the tragic collision.

It was stated that the Union of India was exempt from liability since the hockey team was transported by the vehicle for the Air Force troops to engage in physical activity, which is one of the duties of the Union of India. This argument was rejected by the court, which decided that the carrying of the hockey team to a game could not, by extension, be characterized as an exercise of sovereign authority. As a result, the Union of India was held accountable for the plaintiff’s damages.

Union of India v. Sugrabai

The transporting of military hardware out of the Artillery School’s workshop was determined not to be a sovereign function by the Bombay High Court.

When a military driver murdered a bicycle while driving a motor vehicle transporting a Records Sound Ranging machine from a military workshop to a military artillery school, the Bombay High Court rejected the defence of sovereign immunity. It was decided that the driver was not using sovereign authority.

The Bombay High Court made the following observation: “The State is endowed with sovereign capabilities to enable it to carry out its sovereign functions. One of the sovereign powers granted to the State is the ability to keep an army in order to carry out that duty. One aspect of the use of the sovereign power may be the training of military troops. Obviously, the State would not be accountable for any wrongdoing perpetrated by an army officer while acting in the course of his or her official duties.

However, it cannot be stated that every action taken by the State that is required for the performance of a sovereign function entails the exercise of sovereign authority. Many of these actions can be performed without the government or its agents becoming involved. The proper test for determining whether a particular act was carried out by a government employee acting in the course of a sovereign power delegated to him is whether it was necessary for the State to have the act carried out through its own employee rather than through a private agency in order to properly discharge its sovereign function.”

Rudal Shah v. State of Bihar

The Supreme Court handed down a significant judgement against the Bihar Government for the unjust and illegal detention of Rudal Shah in Muzaffarpur jail for as long as 14 years after he was cleared by the Sessions Court in June 1968. This case established a very important principle of compensation against government for the wrong action of its official. The Court ruled that Rudal Shah and his defenseless family should receive Rs 30,000 in compensation for the injustice and harm they suffered.

Saheli, A Women’s Resources v. Commissioner Of Police

Another significant turning point in the assessment of compensation jurisprudence in writ courts was Saheli v. Commissioner of Police. Kasturi Lal cited the stunning verdict in Vidyawati, which was put on hold, at the proper time. The State was found responsible for the nine-year-old boy’s death, which was caused by police beating and assault. The Delhi Administration was required to provide a 75,000-rupees compensation payment. The importance of this case lies in two factors: first, the restoration of the Vidyawati ratio; and, second, the Delhi Administration’s ability to obtain financial compensation from the personnel deemed accountable for the occurrence.

Common Cause, A Registered Society v. Union of India

The Kasturi Lal case was strongly chastised by the Supreme Court, but it was also not followed by the Court in other cases, which significantly reduced its force as a binding precedent. The doctrine of immunity was rejected in this case after taking into account the entire history of lawsuits brought by or against the State, or more specifically, the Government of India, dating back to the East India Company and up to the period of the Constitution. Kasturi Lal’s case has lost all significance in this legal development process and no longer has any legal weight.

Chairman, Railway Board v. Chandrima Das

In this judgement, the Supreme Court ruled that the duties of the State encompass a wide range of activities, including education, business, social services, government, and the administration of justice. One cannot claim that these actions have anything to do with sovereign power.

State of Gujarat v. Haji Memon

In this historic decision, which will undoubtedly be of great assistance to the public, it was determined that if any moveable property is seized by the police, customs officials, or any other government agency, they are under the same obligation as a bailee to care for the goods as an average man would care for his own goods in similar circumstances. The false claim that bailment can only result from a contract (Section 148) and the state’s attempt to avoid liability for loss of items in its possession under the guise of sovereign powers are inadmissible because the aforementioned section is not exhaustive of all bailment-related issues.

Basava Kom Dyamgonde Patil v. State of Mysore

In this case, items that the police had confiscated were presented before a magistrate, who gave the Sub-Inspector the order to keep the items in his safe custody and to have a jeweller verify and appraise them. While being housed in the police guard room, the items were lost. It was determined in a case for the restoration of the goods that the court could order the State to give the owner the worth of the property if there was no prima facie evidence that the property had been protected by officers of the State with due care.

Growth of remedy under Constitutional Tort

The concept of constitutional torts was developed and codified by the Rudal Shah principle. The court stuck to the case-by-case evolution as needed, refusing to adopt a quick formulation of law. In Sebastian Hongray v. Union of India, a JNU student filed a writ case for habeas corpus under Article 22 after learning that two people taken away by the Sikh regiment were missing. The respondents, UOI, State of Manipur, and Commandant, Sikh Regiment, received a command from the court. The Court learned from what transpired over the course of the investigation that the respondents deliberately disobeyed orders and mislead the investigation. In its following ruling, the Court disregarded the usual penalties of imprisonment and punishment in such cases and instead awarded the spouses of the two people who had vanished after being brought into custody exemplary damages of Rs. 1 lakh apiece. The constitutional tort doctrine has developed over time in various stages. The following are some examples of established principles:

Doctrine to Entertain Appropriate Cases

In Bhim Singh v. State of J & K, the court declares that it will only hear cases that are relevant, but it did not go into any detail on what constitutes an appropriate case. The case involved holding an MLA against his will in order to prevent him from participating in house procedures. In accordance with Article 32 of the constitution, his wife filed a writ of habeas corpus.

Articles 21 and 22 were also deemed violated by the detention decision (1). Even though the MLA was uninvolved at the time of the ruling, the court still decided to award exemplary damage by financially making up for it. The court stated that it “may award exemplary damages when a person comes to us for the remedy for violation of his constitutional and legal rights, and the court believes it to be an acceptable case.” The court also gave Bhim Singh a 50000-rupees award.

Rudal Shah, Sebastian Hongray, and Bhim Singh were the three instances that established the state’s responsibility for compensating a person who has been unlawfully detained by it, infringing his right to life and personal liberty.

The appropriate cases theory was reaffirmed in the MC Mehta case; however the court went into further detail, stating that “an appropriate case may be considered as a case when there is a severe and potent infringement of a person’s right in a way whose scale may shock the court.” Additionally, it was stated that “the court is allowed to decide on the matter based on the facts and circumstances of each case independently depending on its merit” and that “the judgement of qualifying of a case as appropriate or not is comprehensive and not conclusive.”

In the case of State of Maharashtra v. Ravi Kant S Patil, where a person was paraded on the street in handcuffs without a reason, the Apex Court recognized the role of High Courts in awarding compensation. The Court awarded the police officer involved compensation of Rs. 10,000 and ordered the government to note the violation of the person’s rights in the policeman’s service record. But on appeal, the Apex Court maintained the decision while directing that no entry be made in the official records and that the government pay compensation rather than the officer receiving it directly. This was a departure from the law in Saheli v. Commissioner of Police, where the officer had personally approved the recovery. However, in this instance, the High Court’s (HC) function under Article 226 for awarding damages was acknowledged and assisted the High Courts in using the power granted to them for awarding damages in the future.

Constitutional Tort and the end to Sovereign Immunity

Although the doctrine of constitutional tort was developing as a result of decisions like Bhim Singh and Rudal Shah, the courts did not apply the law in Kasturi Lal. The Kasturi Lal ruling was neither overturned nor reaffirmed. Every judgement made it clear that damages were being sought in cases of fundamental rights violations, but the doctrine establishing liability and addressing the supply of remedies remained unchanged. Legal experts demanded that the arrangement of granting compensation in violation of basic rights be considered as an ad hoc measure unless the law in Kasturi Lal is examined.

After a decade had passed after the Rudal Shah judgement, the Hon’ble SC clarified the law in the case of Nilabati Behera v. State of Orissa. The case of Nilabati Behera, which was brought before the SC through a PIL, concerned the death of a 22-year-old boy who died while in police custody and whose body was found lying on a railroad track the day after he was taken into custody. The victim’s mother was ordered by the court to get Rs. 1.5 lakhs from the State. In addition, the court made a lot of observations. These are a few of them:

  • The Court clarified the Rudal Shah views that “monetary claims are permissible under Article 32 and 226” and that “a remedy under Article 32 or 226 may be rejected if the claim placed before the court is problematic in facts.” According to the Court, if a basic right is violated, “the remedy under both articles is precise and available in all circumstances distinctively, in addition to another remedy.”
  • The Court noted that although the defence of sovereign immunity and exceptions to strict liability may apply in cases involving private law, they are inapplicable when the case involves the State infringing on rights protected by public law. The Court distinguished between state liability under private law and state liability under violation of fundamental rights by the State. In accordance with Articles 32 and 226 of the Constitution, the Court must keep this distinction in mind when considering both sorts of cases.
  • An inherent remedy under the constitution is the provision of compensation by the State in the event of a violation of basic rights. The idea of ensuring fundamental rights for all national citizens is incompatible with the idea of sovereign immunity, which the State should not even raise as a defence against having to compensate the victim.

Additionally, it is the only realistic method for compensating the sufferer, which justifies exemplary damages in the form of money. The Rudal Shah case established the law and served as a foundation for later decisions, the court continued. “The enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah,” it added. Even while the remedy for violating articles 20 and 21 has generally been offered in cases involving constitutional tort, there are notable exceptions. Other fundamental rights were violated in the cases of Assam Sillimite Ltd. v. Union of India and Gajanan Vishweshwar Birjur v. Union of India.

Compensation was offered in the Assam Sillimite case for violating article 19(1). (g). The disagreement centred on the lease being terminated without a hearing. Additionally, the action did not follow the natural justice concept.

The Honorable Supreme Court overturned the decision seizing several books in the Gajanan Vishweshwar case when the responsible authority was unable to adequately respond to the reasons for confiscation under section 111 of the Customs Act. The administration’s actions were found to have violated the petitioner’s rights under article 19 (1)(a) of the Indian Constitution, and Rs. 10,000 was given as compensation.

Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)

Due to its decision to award damages under Article 32 but not Article 136, the Supreme Court received harsh criticism. It was suggested that a claim for compensation under article 136 is on par with one under article 32, if not superior in merit.

This wasn’t always the case, though. When the sterilization failed and the woman gave birth to a child, the State of Haryana v. Smt. Santra case accepted the compensation claim as an SLP and the Supreme Court rejected the defence of sovereign immunity.

The Court concluded that “the claim of vicarious culpability of the government hospital doctor cannot be accepted as an instance of doctor-only negligence. The theory of sovereign immunity is irrelevant because the procedure was performed at a government hospital.

Defence of Sovereign immunity in Civil Law Proceedings

In the historic Nilabati Behera decision, the Supreme Court distinguished between remedies available under public law, civil law, and private law. The defence of sovereign immunity was found to not apply to compensation awarded under Articles 32 and 226 even though it does in private law situations like torts.

A significant ruling in this regard may be regarded as the C. Ramakonda Reddy v. State of AP case. In this case, the High Court of Andhra Pradesh issued a highly predictive decision that was later upheld by the Supreme Court. One of the accused in this case died as a result of an outsider entering the jail grounds and planting a bomb in order to kill the deceased, one of the accused, due to the prison authority’s incompetence.

The State, the defendants in this case, misbehaved and behaved badly, which caused the incident to occur. The plaintiff was estimated to have suffered 10 lakhs in damages. The State then disputed its responsibility and said that it was immune from lawsuits arising from the performance of its sovereign duties, which in this case included maintaining the jail. The State was awarded victory in the judgement.

The HC made the following statement in response to the appeal: “The right to life cannot be defeated by the antiquated defence of sovereign functions, and when the person is deprived of his right to life and liberty, it is not a valid argument that the deprivation was due to the state exercising its sovereign functions.”

The Court determined that this was the only option to apply Article 21 in these circumstances after taking into account the facts and awarding the compensation of Rs. 1.44 lakh. The appeal was rejected at a later stage after the Supreme Court upheld the High Court’s decision.

Supreme Court’s approach on Constitutional Tort Issues

When deciding how to address a constitutional tort, the Apex Court has always turned to the extent of basic rights enforcement. The substantive basis for the compensation in the event of a flagrant breach of basic rights divided the analysis. John Marshall, the Chief Justice of the United States, once said that “the government of the United States has always been witnessed as the government of laws and not of man.” In India, the same could be said when the government routinely violated fundamental rights while relying on constitutional provisions and the defence of sovereign immunity.

In Rudal Shah, the court stated that “the plaintiff has the right to compensation if their fundamental rights are violated along with penalizing the authorities who, while acting in the public interest, use their powers as a shield to avoid being held accountable. The court created the notion of relevant cases in Sebastian Hungry and Bhim Singh later on, after awarding damages in the Devki Nandan case for willful and motivated harassment of the plaintiff. The whole doctrine of constitutional torts was subsequently developed in MC Mehta, which also saw the introduction of deep pocket theory.

However, it is challenging to locate a jurisprudence of additional advances since the primary focus of law production on public law and court statements. In order to address the entitlement to compensate for violations of basic rights, a distinct section under Article 13 was attempted to be incorporated as 13A, which comes just before the fundamental rights. It was asserted that doing so would increase liability and be consistent with Article 32.

In the end, the judiciary’s award of damages is a novel idea that was first established in India, although it stumbles at times due to the lack of clear standards.


In conclusion, it may be said that the theory of constitutional tort is a creative body of law developed by the courts despite the fact that the selection criteria used had previously come under fire. For upcoming instances, the Apex Court must develop a scientific standard. In order to shield the victim from a legal violation of their rights, the “voting right model” of the United States may be employed for calculating the damages in Constitutional Tort cases.

According to the government, the statutory authority is neither accountable to it nor subject to it. Therefore, the government cannot be held accountable for the effects of a bad decision made by a statutory authority. Given that the State passed the Act through its legislative branch, it is not permitted to make any such argument. Additionally, the Statute itself or any other authority that the Statute may authorize appoints the authority. In this situation, the statutory authority’s action is taken for and on behalf of the State. As a result, the state is responsible. Only when a statutory authority violates the law while acting in accordance with the legal authority that has been granted to him—and when the violation falls outside the scope of any statutory protection provided by such enactments—does the state become liable for the acts or omissions of that statutory authority.






Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student

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