Law of Torts
State Liability Applied: Police, Custody, Hospitals, Public Works, Municipalities, and Misfeasance in Public Office
Once N. Nagendra Rao confined immunity to the inalienable functions, almost every ordinary activity of government fell outside it. What remains in practice is to identify the footing on which the claim is brought. Most claims lie in ordinary negligence, where the State answers like any other employer. A few lie in the distinct tort of misfeasance in public office, which requires malice or knowledge of illegality and is therefore much narrower than the loose way the word is used. And where a fundamental right has been violated the claim belongs in the writ jurisdiction as a constitutional tort, which is the subject of TORT 053 and TORT 054.
The fields of State liability, the elements of misfeasance in public office, and the limit on exemplary damages
1. Police and Custody
- Negligence in the custody of a person or of property is actionable, and the State answers for it as an employer.
- A person taken into custody in health and produced injured or dead calls for an explanation, and the absence of one is itself evidence. Res ipsa loquitur applies with particular force in custodial cases, because the facts are peculiarly within the knowledge of the authorities.
- Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi, (1990) 1 SCC 422 is the standing illustration: a nine year old boy died of injuries caused by a police assault in the course of a landlord's attempt to evict his mother. The Supreme Court ordered the Delhi Administration to pay Rs 75,000 to the mother, leaving it to recover from the officers responsible, and relied on Vidyawati in rejecting immunity.
- A failure to protect may found a claim where the police knew of a specific threat and did nothing, though the courts are slow to convert a general duty to keep the peace into a private right of action.
- In practice such claims are now usually brought under Article 32 or Article 226, because immunity is no answer there and the relief is quicker.
2. Government Hospitals
- Running a hospital is not an inalienable function of the State, so no immunity attaches to it.
- A government hospital is liable on the same principles as a private one, vicariously for the staff it employs and personally for its own failures of organisation.
- V. Krishnakumar v. State of Tamil Nadu, decided 1 July 2015, is the leading illustration. A premature infant was not screened for retinopathy of prematurity within the critical window, contrary to the established protocol for infants in that category, and went permanently blind. The State, the hospital and the treating doctors were held liable, and future medical expenses were computed with an allowance for inflation.
- That the treatment was given free does not exclude liability in tort, whatever the position under the consumer legislation, and the position under that legislation is itself governed by Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651.
3. Public Works, Roads and Municipalities
The failure | The footing of the claim |
An open manhole or an unlit trench | Ordinary negligence, and frequently res ipsa loquitur, since such things do not lie open in the absence of carelessness |
A collapsing culvert, retaining wall or overbridge | Negligence in construction, in inspection or in maintenance |
A live wire fallen on a public road | Negligence, and in some cases strict liability, electricity being a dangerous thing |
A falling tree that was never inspected | Negligence and nuisance against the municipal body |
A dangerous building the authority failed to demolish | Negligence in the exercise of a statutory power, where the authority knew of the danger |
An uncovered drain or a defective footpath | Negligence and nuisance, and no question of immunity arises |
- A municipal corporation is a statutory body and has no sovereign immunity at all. The doctrine is confined to the State, and a corporation created by statute is not the State for this purpose.
- A statutory authority is liable for negligence in the exercise of its powers, though the courts distinguish a decision about policy and the allocation of resources, which is not readily justiciable, from the operational performance of what the authority has decided to do, which is.
- Statutory authority may be a defence in a proper case, but only where the statute on its true construction excludes liability, which is the subject of TORT 022.
4. Misfeasance in Public Office
- It is a tort committed only by a public officer, and only in the exercise or purported exercise of his public function. A private person cannot commit it.
- It requires much more than an invalid, unreasonable or arbitrary decision. Those are corrected on judicial review, and do not by themselves sound in damages.
- Two alternative mental elements will do. The first is targeted malice, an intention to injure the plaintiff or a class of which he is one. The second is knowledge of illegality: that the officer knew he had no power to act as he did and knew that his act would probably injure the plaintiff, or was recklessly indifferent to both.
- There must be an identifiable plaintiff who has suffered identifiable harm. A general sense of public grievance is not enough.
- And there must be a causal link between the impugned exercise of power and the loss.
The word | What it describes |
Malfeasance | The doing of an act which is unlawful in itself, and which the actor had no right to do at all |
Misfeasance | The improper doing of an act which is lawful in itself, that is, doing a lawful thing in an unlawful manner |
Nonfeasance | The omission to do an act which ought to have been done |
- Only misfeasance in public office is a distinct nominate tort. The other two words describe the character of conduct rather than name a cause of action, and they are used loosely in the reports.
- Nonfeasance by a public authority is the hardest case, because the law has always been reluctant to convert a public power into a private duty to exercise it.
5. The Limit on Exemplary Damages Against a Public Officer
📖 Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667 Facts In earlier proceedings, reported at (1996) 6 SCC 530, the Supreme Court had examined the discretionary allotment of retail petrol outlets by a Minister and found the allotments arbitrary, nepotistic and made on extraneous considerations. It directed the Minister to show cause why he should not be prosecuted, and imposed exemplary damages of Rs 50 lakh on him personally, payable to the Government. He sought review. Held The review was allowed and the award of exemplary damages against the Minister was recalled. Ratio Arbitrariness in the exercise of a public power, however plain, is not by itself the tort of misfeasance in public office. The tort requires malice, or knowledge of the illegality of the act coupled with knowledge that it would probably injure, together with an identifiable plaintiff who has suffered identifiable harm. An award of exemplary damages must rest on a clear and rational basis, and cannot be imposed at large on a public officer in proceedings in which those elements have not been established. |
6. Public Law Compensation and Private Law Damages
Public law compensation | Private law damages | |
The forum | The Supreme Court under Article 32, or a High Court under Article 226 | A civil court, in a suit |
The foundation | The violation of a fundamental right by the State | A tort committed by the defendant |
Is sovereign immunity a defence | No. It is alien to the concept of a guaranteed fundamental right | It may be, within the narrow residue left by Nagendra Rao |
Is fault required | No. Liability for the violation is strict | Yes, unless the tort is one of strict liability |
The measure | Often a conventional or palliative sum, not a full computation of loss | Full compensation, computed under the established heads |
Effect on the other remedy | It does not bar the suit; the sum awarded is adjusted against any decree | The suit is independent, and may be brought for the balance |
⚠ Why misfeasance in public office is rarely established Litigants frequently plead misfeasance in public office whenever an official decision has gone against them and looks unfair, and the plea almost always fails. The reason is that the tort was never designed to police bad administration, which is what judicial review is for. It was designed for the officer who knows he is acting outside his power and does it anyway, either meaning to injure the plaintiff or indifferent to whether he does. That is a state of mind, and it has to be proved, usually against a defendant who will say he acted on advice and in good faith. Common Cause is the standing illustration of how a court can be satisfied that an exercise of power was thoroughly arbitrary and still be unable to make out the tort. The practical consequence for a plaintiff is that a claim framed in misfeasance is a difficult claim, and that the better route is usually ordinary negligence, or, where a fundamental right is engaged, a constitutional tort. |
7. The Position Stated Shortly
1. The State answers for police negligence, for negligence in custody, and for a failure to protect where a specific threat was known.
2. Saheli v. Commissioner of Police ordered the Delhi Administration to pay Rs 75,000 for a child's death caused by a police assault, leaving it to recover from the officers.
3. A government hospital is liable on the same principles as a private one, running a hospital being no part of the inalienable functions of the State.
4. V. Krishnakumar v. State of Tamil Nadu is the leading illustration: a failure to screen a premature infant for retinopathy caused permanent blindness.
5. Public works, roads, drains, culverts and trees are ordinary negligence and nuisance cases, and a municipal body has no sovereign immunity at all.
6. The courts distinguish a policy decision about resources, which is not readily justiciable, from operational performance, which is.
7. Misfeasance in public office is committed only by a public officer in the exercise of a public function.
8. It requires targeted malice, or knowledge of the illegality coupled with knowledge of probable injury, and an identifiable plaintiff who suffered harm.
9. Common Cause v. Union of India recalled an award of Rs 50 lakh in exemplary damages against a Minister, arbitrariness alone not being the tort.
10. Malfeasance is an unlawful act, misfeasance the improper doing of a lawful one, and nonfeasance an omission, but only misfeasance in public office is a nominate tort.