Posted on: September 6, 2020 Posted by: admin Comments: 0

Author- Adarsh Das

Co- Author- Bismita Mohanty


Ever since the emergence of tort law, people had not given much magnitude upon the liability of the state, as because the state had the administrative power and is the supreme ruling institution it was not challenged much. Over the passage of time this scenario changed completely people became more conscious about the dealings of the state and started questioning on the matters of public interest the state was started being sued for the wrong caused either by it or by its servants. So before getting tangle with the topic lets know something about what’s Tort? The law of tort was said to have been developed from the maxim “UBI JUS IBI REDENDUM” which means there is no wrong without a remedy. A tort is said to be a civil wrong that causes the plaintiff to suffer some loss or harm, resulting into evolvement of legal liabilities for the person who has caused such tortious act. An act to be considered as a Tort has to undergo certain elements they are;

  • The act must be wrongful in nature
  • Some damage must have been caused which must be a legal damage
  • And there must lie a legal remedy for the wrong so occurred.

There may be violation of legal right without legal damage but there cannot be a damage without the violation of legal right.

Let’s start this topic from a very renowned English law maxim i.e. “RES NON- PROTEST PECCARE” which means that the king can do no wrong. Yes this statement by itself creates a lot of confusion many questions can arise in your mind while discovering this statement such as the question of supremacy the question of justice being properly served or not and so on. According to English common law it was the then taken into rumination that the king is the son of god and hence he can never commit a wrong. The footing of a kings power has been given immense acknowledgement and clutch over any matter. This peculiar and rigid mechanism never allowed the people of the state to held the king or his servants responsible for the wrongs that they had committed. From this the concept of sovereign immunity came into being the concept of constitutional tort and vicarious liability. Constitutional tort is a judicial instrument from which concept that the state can be held vicariously liable for its wrong either committed by itself or by its servant came into picture.

In India there is no legislation that shall govern the liability of the state for the torts committed by the servants of the state. Sovereign immunity is also known as the crown immunity which coins that the state cannot commit any legal wrong and is immune to any civil or criminal suit.The functions of the state which are not answerable before the court of law and could only be exercised by the state, and other administrative heads like police, law and order, legislative reforms are known as sovereign functions. In the case of “P. & O. Steam Navigation Co. v. Secretary of State[1]” , the facts of the case were that a servant of the plaintiff’s company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government. For the loss cased by the accident, the plaintiff claimed damages against the Secretary of State for India. It was held by the court that the rule had an application on the East India Company and also drew a distinction between the Sovereign and non sovereign functions.

Take into account the Landmark case of “Kasturilal v. State of U.P.[2] ”, the facts were that Head Police Constable in exercise of his sovereign duties confiscated certain amount of gold and fled to Pakistan. The government thus failed in providing safe custody to plaintiff’s gold. Two questions arose here, whether the respondent was negligent in taking care of the gold and, whether the respondent was liable to compensate the appellant. The district court passed a decree, appeal to high court was dismissed while the Supreme Court held that this was done in exercise of sovereign duties, therefore state could not be held liable for the gold confiscated since it was done in the course of employment.

The Hon’ble SC in the case of Nilabati Behera v State of Orissa[3] clarified the law after passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came before SC through PIL and was related to the custodial death of a 22-year-old boy whose body was discovered lying on the railway track on the day after he was sent for police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In addition, there were many observations made by the court. Some of those are as follows:

  1. The Court clarified the observations in Rudal Shah that “a remedy under Article 32 or 226 may be denied if the claim presented before the court is controversial in facts and that monetary claims are allowed under Article 32 and 226”. The Court stated, “the remedy under both the articles is precise and available in all the cases distinctively, in addition to an alternate remedy, if there is a violation of fundamental right”.
  2. The liability under private law and liability of state under violation of fundamental rights by the State was distinguished and the Court observed “even though the defence of sovereign immunity and exceptions to strict liability may apply in cases dealing under private law, they are not applicable when the case is relating to infringement of rights by the State under public law. The award of compensation is a recognised remedy under Article 32 and 226 and the Court must remember the distinction while entertaining both types of cases”.
  3. The provision of compensation from the State in the event of an infringement of fundamental rights is an inherent remedy under the constitution. The question of sovereign immunity is not even a question to ask by the State to prevent itself from providing damages to the victim and is alien to the idea of guaranteeing fundamental rights to every citizen of the country.

In addition, it is the only practical mode available for remedying the victim and thus it provides a justification for exemplary damages in monetary form. The court further stated, “the enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.

Under strict liability the person must have been engaged in prohibited conduct where as in case of vicarious liability the person is held liable for the conduct or the wrong that has been made by another. For example, X is liable for the harmful substance which escapes from his premise and which has caused damage to others, such case impose strict liability.

With the application of dynamic constitutional jurisprudence, the court can quash an order of detention and arrest if it is not according to law.while interpreting the Constitutional provision, the main thrust must be in promoting the rights of the people. The Constitutional courts are entrusted with power and duty to interpret law for the protection of basic and fundamental rights dealt with in the constitution.

  1. Suits and proceedings

(1) 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.

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings .

Now lets try to understand the hold of the topic in respect of the pandemic situation that the entire world is facing currently, due to this pandemic situation our education system has affected greatly the schools and universities has remained closed since the outburst the e- education channeling is still developing and the worst case is with the students who would have never imagined such a situation in their worst nightmare. So let us take the educational institutions i.e, the schools and universities as the state having the supreme power and the students, faculties and other staffs as the citizen of the state . Every citizen is vested with some rights and duties , now due to this situation the schools and the universities are making the students, faculties, and the staff to sign a contract and waive their right to sue the institution. As the institutions are grappling with the issues like how to reopen, when to reopen and from where to start the educational process they don’t want to take any responsibility or burden upon them if any student or faculty or any staff faces any sort of difficulty due to this pandemic situation and covid-19 outburst i.e. here they are seeking complete immunity over any kind of mishap or wrong that the institutions would have been made liable for. But actually no such waiver can protect any of the institution from being sued if they shall cause any harm to the students or the other staffs. Whenever there lies any sort of negligence by the state  or any government servant which has resulted into violation of the human right the state shall has to face its consequences.


While concluding it can be eminently asserted that the constitutional tort law does impound a liability on the state for the wrongful acts of its servants pertaining the exception of the servants acting within the ambit of sovereign power which has not to be taken for granted or lightly. The concept of sovereign immunity which has been profoundly discussed is to be taken in the right spirit so as to uphold the justice delivery mechanism The archaic essence of the statement that the king can do no wrong has long gone and in a democracy its something that should be highly unnerved. The state should always focus on the greater good of its citizen and to provide maximum protection to their rights. The executive cannot exercise any sovereignty over the citizens.


Indian constitution –JN Pandey


[1](1911) ILR 38 Cal 230

[2]1965 AIR 1039

[3]1993 AIR 1960, 1993 SCR (2) 581

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