Liability of state – defense of sovereign immunity

Liability of state- defense of sovereign immunity


The state liability for the acts of omission committed by its servants, not being a static concept, has been governed by written or unwritten laws. Liability of state for the tortious acts of its servants is known as tortious liability of state makes it liable for the acts of omission and commission, voluntarily or involuntarily and bring it before court of law in a claim for non-liquidated damages for such acts.

For many years it was believed that rex non potest peccaremeans ‘the kind can do no wrong’. But in the year 1947, England brought Crown Proceeding Act, 1947 in which they said crown is not exempted from all liabilities and crown can be sued. The very basic maxims which are related to it are ‘respondent superior’ means let the principle be liable and ‘qui facit per alium facit persemeans he who does an act through another does it himself.


As per India is concerned, the tort committed by the government is discussed for the very first time in the year 1858. In the year 1858 it was said that secretary of state in council will be liable for the torts committed by the government. The Government of India Act, 1915 (article 32) repeated the same thing i.e. secretary of state in council will be liable for the torts committed by the government.

The Government of India Act, 1935 under section 176 (i) mentioned federation of India and provinces will be liable for torts committed by the government servant. Whereas, owe current Indian constitution article 300 says Union of India and the state will be liable for the torts committed by the government servants and that’s where it stands as if now.

Two basic functions of government are:

  1. Sovereign function
  2. Non Sovereign function

Sovereign functions are those functions which are done only by the government of state. Eg. Defense of the country, raising and maintaining armed forces, making peace r war, foreign affairs, acquiring and retaining territory etc.

Non Sovereign functions means those function done by the government as well as individuals in order to make some profit. Eg. Road transport, construction, trade activities etc

If tort is committed while doing these sovereign functions, such functions are not the cases which are coming under here. Whereas, if the tort is committed doing non sovereign will be liable for such torts.

The first judicial interpretation of state liability during the east war made in John Stuart’s case, 1775. It was held for the very first time that the governor general in council had no immunity from court’s jurisdiction for the cases which involves dismissed of government servants. One of the leading case under section 58 of the government of India act 1858 is of Oriental Steam Navigation v. Secretary to the state of India, it was held there was a clear distinction between the acts done by the public servants in the delegated exercise of sovereign powers and act done by them is the conduct of other activities. Further, due to negligence of servant of government working in carriage hired by an individual was injured.

Therefore, 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 done in the exercise of sovereign function.

Position in India:

Under Indian constitution articles 294 and 300 contain explicit and implicit provisions to tortious liability of state and suit against it. Article 294(b) of the constitution provides, that the liability of union government and state government may arise out of any contract in otherwise. The term ‘otherwise’ includes various liabilities of including tortious liability also. Therefore, it constitute and transfer the liabilities of government of India and governing province in the union of India and corresponding state.

Article 300(1) of the constitution of India provides that state can sue or be sued as juristic personality. It reads as under : the government of India may sue or be sued by the name of Union of India and the government of a state may sue or be sued by the name of the state and may subject to any provisions which may be made by act of parliament or of the legislature of such state enacted by virtue of powers conferred by this constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion Of India and the corresponding provinces or the corresponding Indian states might have sued or been sued if this constitution had not been enacted.

But at the same time, the president of India and the governors of state enjoy personal immunity and they are not answerable to any court as provided in article 361 of the constitution for the services of and performance of the powers and duties of their officers.

The extent of state liability for torts committed by its servants for the very first time arose before the Supreme Court, after the present constitution came into operation in case of

  • State of Rajasthan v. Mst. Vidyawati (AIR 1962 SC 933) the court said that the employment of driver of the 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.
  • Further said that the principle that ‘the king can do no wrong’ has no application and validity in this country. There should be no difficulty in holding that the state be as much liable for tort and in respect of a tortious acts committed by its servant and functioning as such as any other employer.
  • The aim of the court in making such observation was that the government should make an appropriate legislation and make the position clear. In absence of any legislation, the court have been following the common law rule.
  • Liability of state for torts committed by its servants again in following case Kasturi Lal v. State of Uttar Pradesh (AIR 1965 SC 1039) the Supreme Court held that the state was not liable on the basis of the rule that the tort was committed by the police officers in the exercise of delegated sovereign powers of the state and approved the distinction made in the navigation case between sovereign and non-sovereign functions of the state.
  • The court, however made a strong plea for enactment of a legislation to regulate and control the claim of the state for immunity on the lives of the crown proceedings act of England.
  • Though the decision of the Supreme Court in Kasturi Lal’s case has not been overruled but the subsequent decisions of the court have undermined its authority and limited the extent of the principle of state immunity to a very limited area. These decisions of courts made it clear that in modern times the distinction between ‘sovereign’ and ‘non-sovereign’ function of state has almost been obliterated.
  • Next case which arose under Essential Commodities Act in case of Nagendra Rao v. State of Andhra Pradesh (AIR 1994 SC 263) the two judge bench of the Supreme Court has held that the doctrine of foreign immunity has no relevance in the present day context.

Defense of state immunity not available where fundamental rights are violated:

Article 21 under constitution of India forbid state to deprive a person of his life and liberty except in accordance with a procedure established by law. The decisions of the Supreme Court under personal liberty have further diminished the sphere of sovereign immunity.

Therefore, the wrongdoer is accountable and the state is responsible if the person in custody of police is deprived of his life and personal liberty without procedure established by law the Supreme Court and the High Court have granted exemplary damages under their writ jurisdiction in cases where there is violation of life and liberty of citizens guaranteed by article 21 of Indian constitution.

In case of Nibati Behera v. State of Orissa (AIR 1993 SC 1960) it was held that if no other practicable mode of redress is available the court would award monetary compensation for breach of fundamental rights by state or its employees based on the principle of Strict Liability.


India being a welfare state, means the country has accepted the liability towards securing the public welfare and to serve the interest of all citizens. Therefore, when every incidences of violation of legal rights of an individual occurs and for which no immediate relief is provided the law of torts come up with helping hands.

Author: Nishchal Kukade,
Dr. Babasaheb Ambedkar College of Law, Nagpur Final year student

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