Sovereign Immunity vs Constitutional Tort: Two Routes to State Liability Compared

A person injured by the act of a public servant in India faces a choice of routes, and the choice usually decides the outcome. He may sue in the civil court under Article 300, where the State's liability depends on nineteenth-century case law about the East India Company and where the plea of sovereign immunity is at least formally available. Or he may move the writ court under Article 32 or 226 on the footing that a fundamental right has been violated, where the liability is strict, the immunity is no defence at all, and the proceeding is decided in months on affidavits. The two routes reflect different conceptions of what the State is answerable for. This topic compares them, explains why the second largely displaced the first, and identifies what each is still good for.

1. The Two Conceptions

The private law route treats the State as an employer. Its liability is vicarious, derived from the wrong of a servant, and it is measured by the rules that govern any employer. On that view the State is a defendant like any other, which is why it was thought to need an exception for the functions no private person performs, and the sovereign and non-sovereign distinction follows.

The public law route treats the State as the bearer of constitutional obligations. Its liability is its own, arising from the breach of a duty the Constitution imposes on it and on nobody else, and it is not derived from the wrong of any particular servant. On that view an immunity for sovereign functions makes no sense, because the obligation attaches precisely to the exercise of sovereign power: the guarantee in Article 21 is a guarantee against the State acting through its coercive machinery, and an immunity for that machinery would defeat the guarantee at exactly the point where it matters.

2. The Turn Away from Immunity

📖 Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi, (1990) 1 SCC 422

Facts: A landlord, assisted by police officers, sought to evict a tenant from a tenement in Delhi. In the course of the incident a nine-year-old boy was beaten by a Sub-Inspector of Police and died of his injuries. His mother, a tenant, had no means to pursue a claim, and a women's organisation moved the Supreme Court on her behalf. The State contended that the acts of the police were done in the discharge of sovereign functions.

Held: The Supreme Court awarded compensation to the mother. It held that the State is responsible for the tortious acts of its employees and that where a death occurs as a result of the beating and assault by police officers, the State is liable to pay compensation; the immunity recognised in Kasturi Lal could not shield the State in such a case. The Court referred to Vidhyawati and to the changed conception of the State's responsibility, and held that the mother was entitled to be compensated for the death of her son caused by the wrongful act of the officers. It further directed that the State would be entitled to recover the amount from the officers responsible, so that the ultimate burden should fall on the wrongdoers.

Ratio: The State is liable in compensation for a death caused by police assault, and the sovereign immunity recognised in Kasturi Lal does not protect it. The State may recover the amount paid from the officers at fault.

3. The Full Comparison

Basis	Sovereign immunity route (private law)	Constitutional tort route (public law)
Legal basis	Article 300 and the pre-Constitution position	Articles 32 and 226 read with the fundamental right infringed
Nature of liability	Vicarious; derived from the servant's tort	Direct and strict; the State's own breach of a constitutional duty
Forum	Civil court, by suit	Supreme Court or High Court, by petition
Sovereign immunity	Available in principle for inalienable functions	Wholly unavailable (Nilabati Behera)
What must be proved	Duty, breach, causation, damage, and the employment relationship	That a fundamental right was violated by the State
Procedure	Pleadings, discovery, evidence, cross-examination	Affidavits and records; no trial
Time to relief	Years	Months, often in the same proceeding as the writ
Limitation	Limitation Act applies	No statutory limitation; delay is a discretionary bar
Notice under section 80 CPC	Required	Not applicable
Measure of the award	Full compensatory damages on assessment	Palliative, sometimes exemplary; not a computation of loss
Effect on other remedies	Ordinary rules of res judicata	Leaves the civil suit, prosecution and departmental action intact
Recovery from the officer	The officer may be sued personally	Courts often give the State liberty to recover from him

4. Misfeasance and Exemplary Awards

📖 Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667

Facts: Petrol pump and gas agency dealerships were allotted out of a discretionary quota by the Minister for Petroleum and Natural Gas to persons connected with him and to others outside the prescribed procedure, disregarding the guidelines governing such allotments. The allotments were challenged in public interest proceedings.

Held: The Supreme Court quashed the allotments and held that the exercise of discretionary power in that manner was arbitrary and an abuse of office. It held that a public servant who acts in abuse of his position and causes loss or injury may be liable for the tort of misfeasance in public office, and that exemplary damages may be awarded against the State and recovered from the officer where public power has been misused for extraneous purposes. The Court emphasised that public power is held in trust for the public, that its exercise must be for public benefit, and that the State cannot claim immunity for acts which violate constitutional or statutory obligations.

Ratio: Misuse of public office for extraneous purposes may attract exemplary damages, and the State cannot claim immunity for acts violating constitutional or statutory obligations. Public power is held in trust and its abuse is actionable.

5. Which Route to Take

The claim	Appropriate route
Custodial death or torture	Public law; the violation of Article 21 is patent and immunity is no defence
Illegal or prolonged detention	Public law
Police assault causing death or serious injury	Public law, with the State free to recover from the officers (Saheli)
Misuse of office causing loss, in public interest proceedings	Public law, with exemplary damages possible (Common Cause)
Road accident caused by a government vehicle	Private law, or the statutory motor accident forum
Medical negligence in a government hospital	Private law or the consumer forum; a writ lies only where the facts are undisputed
Negligent custody of seized goods	Private law, immunity being unavailable after N. Nagendra Rao
Disputed allegations of torture requiring evidence	Private law; the writ court will relegate the claimant (Sube Singh)
Claim requiring assessment of substantial pecuniary loss	Private law, since the public law award is palliative

6. What Remains of the Private Law Route

Claims that do not involve a fundamental right, such as damage to property through negligence, where Article 21 is not engaged.
Claims requiring full compensation, since the public law award is deliberately palliative and does not compute the loss.
Claims turning on disputed facts, which a writ court will not resolve on affidavits.
Claims against the officer personally, which may be pursued in a suit alongside or instead of the claim against the State.
Claims for the balance after a public law award, which the courts have consistently preserved.
Claims outside the limitation for a writ where the suit is still in time, though delay in a suit has its own consequences.

⚠ The two routes have not merged, and the difference is now one of proof rather than of principle

It is tempting to say that sovereign immunity is dead and the two routes have become one. That overstates the position in a way that matters practically. The immunity survives in a suit, and the sovereign and non-sovereign question can still be argued, even if it rarely succeeds after N. Nagendra Rao. What has really happened is that the decisive question has shifted. It is no longer whether the function was sovereign, but whether the claimant can bring his case within the public law jurisdiction, which requires a violation of a fundamental right established on material that needs no trial. A claimant who can do that faces no immunity; one who cannot is back in the civil court, where the old law still applies to him.

7. The Position in Summary

The private law route treats the State as an employer with vicarious liability subject to an exception for sovereign functions; the public law route treats it as the bearer of constitutional obligations with direct and strict liability.
Sovereign immunity is wholly unavailable in public law, because the constitutional guarantee attaches precisely to the exercise of sovereign power.
The State is liable for deaths caused by police assault, and may be given liberty to recover the amount from the officers responsible (Saheli).
Misuse of public office for extraneous purposes may attract exemplary damages, and immunity cannot be claimed for acts violating constitutional or statutory obligations (Common Cause).
The private law route survives for claims not engaging a fundamental right, claims requiring full compensation, claims turning on disputed facts and claims for the balance after a public law award.

8. Related Topics and Provisions

Doctrine of Sovereign Immunity (Topic 134) and Government Liability in Tort (Topic 132).
Constitutional Tort (Topic 131) and Public Law Compensation (Topic 133).
Vicarious Liability of the State (Topic 136) and Liability for Negligence (Topic 135).
Abuse of Administrative Discretion (Topic 51): malice in law and improper purpose.
Public Interest and Administrative Discretion (Topic 57): public power held in trust.
Constitution of India: Articles 21, 32, 226 and 300; Code of Civil Procedure, 1908, section 80.