Author: Arushi Banta, Student at Bharati Vidyapeeth New Law College, Pune
Co-Author: Vipin Malviya, Student at Bharati Vidyapeeth New Law College, Pune
This research article talks about vicarious liability of the State or government. Vicarious liability means when one person is held responsible for wrongful acts or omissions of another person. Vicarious liability is based on the maxims “Respondeat superior” meaning let the master answer and “Qui facit per alium facit per se” meaning he who acts through another does the act himself. Vicarious liability of the State means liability of the State or the government for wrongful acts or omissions of its servants during the course of their employment. This research article talks about the extent to which the State will be held responsible for the wrongful acts of its servants. The concept of vicarious liability of the State has undergone a vast transformation since the pre- Constitutional era. This research article analyzes this transformation. It explains the position of the State liability in pre- constitutional era and post- constitutional era with the help of case laws. It also talks about current flaws in the law regarding the vicarious liability of the State that need to be addressed.
The literal meaning of the term ‘vicarious’ is done or acting for another and the literal meaning of the term ‘liability’ is the state of being legally responsible for something. Vicarious liability is a situation where a person is held responsible for the wrongful acts or omissions of the third party.
The word ‘State’ is explained in the Article 12 of the Constitution of India which includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Vicarious liability of the State means liability of the State or the government for wrongful acts or omissions of its servants during the course of their employment. The position of vicarious liability of the State has evolved since the pre- constitutional era. There are flaws in the law concerning the vicarious liability of the state that need to be addressed.
VICARIOUS LIABILITY OF THE STATE IN ENGLAND
Prior to the year 1947, the maxim “Rex non potest peccare” meaning King can do no wrong was followed in England. The government servants were personally responsible for their wrongful acts or omissions, even when the wrongful acts or omissions were authorized by the king. But in the year 1947, Crown Proceedings Act came into force. Now, the king is liable for the wrongful acts of its servants during the course of their employment.
VICARIOUS LIABILITY OF THE STATE IN INDIA IN PRE-CONSTITUTIONAL ERA
The maxim “Rex non potest peccare” was never adopted in India. “The vicarious liability of State can be seen in the Section 176 of the Government of India Act, 1935. This Act, like the present Constitution, does not give the circumstances of the Government’s liability but recognizes the position prevailing before the passing of this Act. Similar position can be seen in the Section 32 of the Government of India Act, 1935 and Ultimately, Section 65 of the Government of India Act, 1858 provides as under : The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate and all persons and bodies politic shall, and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the East India Company.” The position can be understood more clearly with the help of case laws.
- Peninsular and Oriental Steam Navigation Company v. Secretary of State for India 
The company’s servant was travelling to Calcutta in a horse cart. The horse cart was passing through the dockyard of the government. A heavy piece of iron, which was being carried for the repair of a steamer, fell and its clang which frightened the horse. The horse rushed forward against the iron and was injured. The company sued the Secretary of State for India to seek damages for the negligence on the part of their employee. The court made a distinction between the sovereign and non-sovereign functions of the East India Company. The Court held that, the East India Company would not have been liable if the act was done in the exercise of sovereign functions, but the Company would have been liable if the function was a non-sovereign one. The court held that the dockyard maintenance was non-sovereign function .Therefore the government was held liable.
- Secretary of State for India V. Hari Bhanji
During the course of the transit from Bombay to Madras, the rate of duty on salt was increased. The merchants of Madras were asked to pay the difference. Since, the salt was perishable, so these Madras merchants paid the difference but they instituted a suit for recovery of the money. The court held that the government servants were discharging the sovereign function. Hence, the State was not held liable.
- Secretary of State for India V. Cockcraft 
Some construction work was being carried out by the government servants on the road. A heap of gravels was negligently left by the government servants on the road. The plaintiff was injured due to the heap of gravels. The plaintiff sued the State for damages. The court held that the maintenance of road was a sovereign function and therefore, the State was not held liable.
- Maharani Gurucharan Kaur of Nabha V. The Province Of Madras
The plaintiff was wrongfully confined by the sub- inspector of police and the plaintiff sued the State for wrongful confinement. The court held that no suit shall lie against the government for wrongful confinement as the servant was discharging a sovereign function.
Thus, we can conclude that in pre-constitutional era, the State was held liable if the government servant did the wrongful act or omission in discharge of a non- sovereign function but in discharge of a sovereign function it was not held responsible.
VICARIOUS LIABILITY OF THE STATE IN INDIA IN POST-CONSTITUTIONAL ERA
In the year 1950, the Constitution of India came into force. The state liability was recognized in the Article 300 of the Indian Constitution. Article 300 provides that in the cases where the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if the Constitution had not been enacted, the government of India and government of state can also be sued in such cases but it is subjected to provisions of any Act made by the Parliament or the state legislatures. The position can be understood more clearly with the help of case laws.
- The State of Rajasthan V. Vidhyawati
A driver of a jeep owned and maintained by the State of Rajasthan for the official use of the Collector drove negligently while bringing it back from garage and met with an accident due to which one person was killed. The Supreme Court held that driving the jeep negligently was not a sovereign function and hence the State was held liable.
- Kasturilal Ralia Ram Jain V. The State Of Uttar Pradesh 
Kasturi Lal was arrested on the suspicion of theft. A lot of gold and silver was seized from him by the police officer. The offence of theft could not be proved against him. SO, he was released on bail and the silver was returned to him but gold wasn’t returned to him. The gold was kept in the police Malkhana under the charge of the then Head Constable, Mohammad Amir who fled with the gold to Pakistan. The plaintiff filed a suit against the State of U.P. for either return of gold or for compensation. The court held that the State was not liable as the power of the police official in keeping the property in the Police Malkhana was a sovereign function.
- Association Pool, Bombay v. Radhabai Babulal
A vehicle allocated to the primary health centre belonging to the state of M.P. was being used for bringing some children for their treatment from another village to the centre. Due to the negligence of driver, on the way an accident occurred and one person was killed. The State argued that the accident occurred in the execution of a sovereign function. The court rejected this contention and held that medical relief work was not a sovereign function. Therefore, the State was held liable.
- State of Mysore V. Ramchandra Gunda and Anr.
The State government made a reservoir to provide water to the people in a town. Water overflowed from this reservoir due to which the crops in the adjoining land belonging to the plaintiff were destroyed. The plaintiff filed a suit against the State for damages. The court held that the reservoir was constructed for welfare of people but it was not a sovereign function.
There was a lot of chaos and confusion among the people. No proper meaning of sovereign function and sovereign function was given by the courts. So finally after the year 1980, the concept of sovereign and non- sovereign functions was ended and the Supreme Court declared that the state will be held liable to pay compensation whenever a government servant violates basic human rights of any person during the course of his employment. Now, the Human Jurisprudence was evolved.
- Khatri V. State of Bihar
In the Bhagalpur Central Jail, thirty one prisoners were blinded by the police by pouring acid into their eyes. When the matter went to the Supreme Court, it directed the Bihar government to pay for their treatment but nothing was said about the compensation.
- Veena Sethi V. State of Bihar
In this case, the Supreme Court held that compensation should be paid to the citizens whose rights are violated by the government servant during the course of their employment. Also, Rs.20, 000 compensation was paid to the prisoners of Khatri case.
- Rudal Shah V. State of Bihar
In the year 1953, Mr. Rudal Shah was arrested on the charges of murder of his wife. But in the year 1968, he was acquitted by the Court of Sessions, Muzaffarpur, Bihar. In spite of the acquittal order, the petitioner was kept in jail for 14 years. A writ petition of habeas corpus was filed by the petitioner before the Supreme Court under Article 32 seeking compensation for his illegal detainment. The court held that the detention of the petitioner was illegal. The court held that the Supreme Court can award compensation on breach of a fundamental right under the Article 32 of the Indian Constitution. The court ordered the State Government to pay a compensation of rupees 30000 in addition to rupees 5000 which had already been paid.
- Bhim Singh V. State of J&K
The petitioner, an M.L.A. of J & K. Assembly, was detained by the police wrongfully while he was going to attend the Assembly session. But within the requisite period, he was not produced before the Magistrate. The petitioner filed a petition against the State and was awarded Rs. 50, 000 as compensation.
- Nilabati Behera V. State of Orissa
A 22 year old boy died in police custody due to custodial torture. A writ petition was filed in the Supreme Court against the State. The Supreme Court granted the compensation of 1.5 Lakh to the victim’s mother.
- The Chairman, Railway Board & Ors V. Mrs. Chandrima Das & Ors
A Bangladeshi woman was raped by the Railway officials in Railway Niwas. A petition was filed in the court against the State. The court held that under Article 21, Right to life is available to every person not merely to the citizens, hence the state was held liable and a compensation of Rs. 10 lakh was awarded to her.
- Nagendra Rao V. State of A.P.
In this case, the Supreme Court held that the State will be liable to pay compensation when due to the negligent act of the officers of the State a citizen suffers any damage and the principle of sovereign immunity of state will not discharge him from this liability.
- In re- Indian Woman says gang-raped on orders of village court V. State
A tribal village girl had an affair with a boy outside her community. To teach her lesson, the Panchayat ordered to gang rape her. The government settled the matter by awarding Rs. 50, 000 compensation to her. The Supreme Court interfered and asked the government to pay Rs. 5 Lakh more.
PROBLEM WITH THE MECHANISM OF AWARDING COMPENSTION
There is no specific law which determines the amount of compensation that should be paid to the aggrieved party in case of violation of basic human rights by the government servant. In case of illegal detention of 14 years, only Rs 35,000 was paid as compensation where as in the case of illegal detention of not even a complete one month the compensation of Rs. 50,000 was paid. The question which arises is that is this just? Another question which arises is that on what basis the courts decide this compensation. Even the first Law Commission Report suggested that for the purpose of determining compensation, a law should be made but till date there is no as such law made. It is the need of the hour to make a law to determine compensation in cases of violation of human rights of any person by the government servant during the course of their employment.
We can conclude that the vicarious liability of the state has undergone a vast transformation since the pre-Constitutional era. In today’s scenario, no concept of sovereign and non-sovereign function is prevalent. Now, the State is held liable whenever the government servants violate the basic human rights of any person during the course of their employment no matter if such act is done in exercise of sovereign or non-sovereign function. It is the high time to make a specific law to determine the compensation in cases of violation of human rights of any person by the government servant during the course of their employment.
 INDIA CONST. art. 12.
 R.k. Bhangia, Law Of Torts 134-135(Allahabad Law Agency, 2019).
 Peninsular and Oriental Steam Navigation Company V. Secretary of State for India, (1861) 5 Bom. H.C.R. App. I.
 Secretary of State for India V. Hari Bhanji, (1882) ILR 5 Mad 273.
 Secretary of State for India V. Cockcraft, (1916) ILR 39 Mad 351.
 Maharani Gurucharan Kaur of Nabha V. The Province Of Madras, (1942) 2 MLJ 14.
The State of Rajasthan V. Vidhyawati, 1962 SCR Supl. (2) 989.
Kasturilal Ralia Ram Jain V. The State Of Uttar Pradesh , 1965 SCR (1) 375.
 Association Pool, Bombay v. Radhabai Babulal, 1976 Acc CJ 362.
State of Mysore V. Ramchandra Gunda and Anr., AIR 1972 Bom 93.
Khatri V. State Of Bihar, 1981 SCR (2) 408.
Veena Sethi V. State of Bihar, AIR 1983 SC 339.
 Rudal Shah V. State of Bihar, 1983 AIR 1086.
 Bhim Singh V. State of J&K, AIR 1986 SC 494.
 Nilabati Behera V. State of Orissa, 1993 AIR 1960.
 The Chairman, Railway Board & Ors V. Mrs. Chandrima Das & Ors , AIR 2000 SC 988.
 N. Nagendra Rao v. State of A.P., 1994 AIR 2663.
 In re- Indian Woman says gang-raped on orders of village court V. State (2014) 4 SCC 786.