Understanding Constitutional Torts

This article on the law of torts (civil wrongs) has been written by Hunney Mittal.


As per Section 2(m) of the Limitations Act 1963, “Tort means any civil wrong which is not exclusively a breach of contract or breach of trust”. When a person suffers some damage arising out of the act or omission by another he or she can bring a civil suit against them for the unliquidated damages (compensation). Back in the times, when the country was still under the British rule, the concept which was followed was ‘King can do no wrong’ and hence, no liability can be imputed on the state for any damage caused by its employees and hence, no concept of vicarious liability where the employer is held responsible for the acts done by the employees in the course of employment.

While the scenario has  changed completely after the institution of the Crown Proceedings Act of 1947 in England which made the Crown liable in torts like a private person of full age and capacity subject to certain exceptions inter alia in the realm of maintenance of armed forces, postal services, the same age old archaic concept is still followed in India.


Article 300(1) of the Indian Constitution states, “ The Governor of India may sue or be sued by the name of the Union 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”.

The provision thus, makes the Union of India and States a juristic person capable to sue and being sued. However, the circumstances in which it can be done are not specified but the last words, ‘if this Constitution had not been enacted’ take us back to Sec 176 of the Government of India Act, 1935 which can be traced back to Sec 32 of the Government of India Act, 1915 which finally takes us to Sec 65 of the Government of India Act, 1858. The East India Company had a dual capacity- commercial and sovereign and Sec 65 exempted from any tortuous liability in its sovereign capacity and the same principle is followed even now.


The acts of the State can be classified into two types namely Sovereign and Non-Sovereign functions. This principle emerged in the case of P & O Steam Navigation Co. Vs Secretary Of State, where the Bombay High Court held that the state shall not be liable for any sovereign act i.e. any act which could not be lawfully performed except by a sovereign. For the other non-sovereign functions i.e. the functions which can be performed by any private individuals, suits could have been brought against the company. In the above case, the plaintiff’s horse got injured by the negligence of some workmen in the Government Kidarpur Dockyard.

He filed a case for the damages which was dismissed terming the act by the employees as in the discharge of the sovereign function.In the case of Union of India Vs Harbans Singh, the state was held not vicariously liable for the rash and negligent driving of the military truck by a military man.The Law Commission of India, in its First Report in 1956 states that “the law was correctly laid down in the Hari Bhanji’s case.” In the case mentioned, the court held that just because an act has been done by the sovereign powers which couldn’t be possibly done by the private individuals doesn’t oust the jurisdiction of the civil court. It was however, mentioned by the court that the Government couldn’t be held liable for the acts connected with public safety which may or may not be the act of the state.

Liability was also imputed where the matter was related to interference of property.The domain of sovereign functions was thus very big earlier with almost everything coming under it. The first post-constitution case was State of Rajasthan Vs. Vidyawati,where the driver of a Government jeep, which was being used by the Collector of Udaipur, knocked down a person walking on the footpath by the side of a public road. The injured person died three days later, in the hospital. The legal representatives of the deceased filed case for seeking compensation and the High Court held that such act cannot be constituted as a sovereign function and hence, the compensation was allowed. The court observed, “there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortuous act committed by its servants within the scope of his employment and functioning as such, as any other employer.”

Another landmark judgment was passed in the case of Kasturi lal Ralia Ram Vs State of UP, where the plaintiff was suspected of possessing stolen property while he was in Meerut to sell his gold and silver and was taken into custody by the two policemen. He was released next day but his gold which was in police custody was stolen by one of the policeman who fled to Pakistan with the same. The court however, didn’t allow any compensation terming the act as a sovereign function.

In the modern context, it is very difficult to draw a distinction between the sovereign and non-sovereign function as there have been contradicting decisions by the various High Courts. While running of railways has been regarded as a sovereign function by one court, the same has been pronounced as non-sovereign by the other. Another look at the Kasturilal’s case suggests that keeping someone else’s property amounts to bailment relationship between them for which the liability should be imputed. In the modern context, the test of sovereign and non-sovereign functions seems to be absurd, irrational and outmoded as the situations have become more complex.

The scope of welfare state is expanding and the responsibility of the State has expanded to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital as has been held in the case of N. Nagendra Rao Vs. State of AP. The increased activities of the State have made a deep impact on all facts of an individual’s life, and so, the liability of the State should be made co-extensive with its modern role as a welfare state not confining to the era of laissez faire (free rein).


Overtime, the courts have moved towards the concept of compensatory jurisprudence where it finds ways to give compensation to the plaintiffs who have suffered damage when a wrong has been committed irrespective of the absence of any judicial precedent or constitutional provision. The Supreme Court has expressly dissented with its earlier ruling in Kasturilal case and has stated that the theory pronounced in the case is no longer available in a welfare state. The Supreme Court, in the case of Basava Kom Dyamgonde Patil Vs. State of Mysorehas held that the State shall be liable for any loss to the property seized by the police as due care and caution is to be exercised. When the fundamental rights of an individual are violated, the quantum of damages offered is huge. In the case of Bhim Singh Vs State of J&K, exemplary damages of 50,000 were offered where the state was held liable for unlawfully detaining the plaintiff violating his Right to life enshrined in Article 21 of the Constitution. This was re-iterated in the case of Rudal Shah Vs State of Bihar, where the petitioner was kept in jail for 14 years unlawfully after getting acquittal from the court and damages of 35,000 were offered.


Though the scope of sovereign immunity has now become limited and the development of compensatory jurisprudence has ensured that justice is done to the citizens injured by the wrongful acts of the State, the law is neither just in its substance nor satisfactory in its form. If the State is for the protection of the people and promote their welfare, it should accept its liability for its wrongful acts. Though exceptions can be made, but this should be taken into consideration only in rare cases. Also, Article 300 needs modification as it limits the liability of the State only for commercial acts. Effective legislation is also needed as the Law Commission of India in its first report even intended to introduce a bill for the same but no measures were taken. An act should also be made in lines with the Crown Proceedings Act 1947 of UK and Federal Tort Claims Act 1946 of US so as to prevent miscarriage of justice.

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