Law of Torts
State Tort Liability and the Constitutional Tort: Suing the State and Enforcing a Right Against It
Both make the State pay for an injury its servants inflicted, and they reach that result by different routes. State tort liability is the ordinary law of torts applied to a public defendant: the State answers vicariously for its servant's tort under Article 300 of the Constitution, subject to whatever immunity survives for the sovereign functions. The constitutional tort does not go through vicarious liability at all: it holds the State directly answerable for the violation of a fundamental right, needs no proof of fault, and admits no immunity. The first asks whether a servant committed a tort; the second asks whether a right was breached.
1. The Comparison
State tort liability | Constitutional tort | |
The source | Article 300 of the Constitution, which carries forward the liability of the former Dominion and Provinces | Articles 32 and 226, read with the right violated |
The nature of the liability | Vicarious. The State answers for its servant's tort | Direct. The State answers for the breach of the right |
What must be shown | A servant; a tort by him; committed in the course of his employment | The violation of a fundamental right, ordinarily Article 21 |
Fault | Must be proved against the servant | Need not be proved at all |
Sovereign immunity | Survives for the primary and inalienable functions | No defence whatever |
The proceeding | A suit, with pleadings, issues and a trial | A writ petition, decided on affidavits |
Court fee | Ad valorem on the amount claimed | A fixed fee |
Limitation | The Schedule to the Limitation Act, 1963 | No article applies, but delay may defeat the petition |
Available against a private party | Yes, on the same principles | No, the rights being guaranteed against the State |
The measure | Full compensation, assessed at trial | Often summary, and expressed as a palliative |
2. The Constitutional Foundation of the Ordinary Liability
Article 300(1), Constitution of India The Government of India may sue or be sued by the name of the Union of India 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 Article does not define the liability; it preserves it. It carries forward the position as it stood before the Constitution, which in turn carried forward the position under the Government of India Acts, which carried forward the liability of the East India Company.
- Parliament was given power to legislate on the subject and has never done so, so the law remains what the courts have made of a nineteenth century chain of statutory references.
- That is why the sovereign function distinction survives in India long after it was abolished by statute in England, and why the leading authority is still a decision of 1861: TORT 136.
3. The Two Lines of Authority
📖 Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039 Facts A partner of a firm of jewellers was arrested by the police in Meerut on suspicion of possessing stolen property. Gold and silver seized from him were kept in the police malkhana. The head constable in charge misappropriated the gold and fled to Pakistan. The firm sued the State for its return or its value. Held The State was not liable. Ratio The act of the police officers in seizing and retaining the property was done in the exercise of a statutory power conferred on them, which is a power that can be lawfully exercised only by a sovereign authority. The negligence having occurred in the discharge of a sovereign function, the State was protected, notwithstanding that the loss was plain and the plaintiff blameless. The Court expressed dissatisfaction with the result and invited legislation, which never came. |
📖 N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205 Facts Stocks of fertiliser and foodgrains seized from the appellant under the Essential Commodities Act were negligently kept by the authorities and deteriorated. The confiscation was ultimately set aside, but the goods were by then worthless. Held The State was liable. Ratio The doctrine of sovereign immunity has no relevance in the present day when the concept of sovereignty itself has undergone a radical change. The State in a welfare society carries on activities which are indistinguishable from those of a private citizen, and no civilised system can permit an executive to play with the people of its country and claim to be sovereign. Immunity survives, if at all, only for those functions which are primary and inalienable and which no private person can undertake. Kasturilal was confined to its facts and its reasoning substantially eroded. |
4. The Constitutional Tort
- Rudul Sah v. State of Bihar, (1983) 4 SCC 141 began the jurisdiction. A man was kept in jail for over fourteen years after his acquittal, and the Court held that Article 32 was not confined to a declaration or a release, awarding compensation in the petition itself as a palliative and leaving him free to sue.
- Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 placed it on principle. Compensation under Article 32 or 226 rests on a public law liability distinct from liability in tort, and to that liability sovereign immunity is no defence at all.
- D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 laid down the custodial safeguards and confirmed that compensation for custodial violence is available as of course in the writ jurisdiction.
- State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 5 SCC 712 is the decisive answer to Kasturilal. An undertrial prisoner was killed in jail by a bomb thrown by assailants, the jail being known to be unsafe and inadequately guarded. The Court held that where a fundamental right has been infringed, the defence of sovereign immunity is not available, and that a fundamental right cannot be defeated by a plea based on a nineteenth century distinction.
- Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 extended the jurisdiction in two directions at once: running the railways is a commercial activity and not a sovereign function, and Article 21 protects persons and not only citizens, so a Bangladeshi national gang raped by railway employees at a railway guest house was awarded Rs 10 lakh in the writ jurisdiction.
5. How They Interact
- The constitutional remedy did not overrule the ordinary one; it went round it. The Court did not hold Kasturilal wrong so much as hold it irrelevant wherever a fundamental right is engaged.
- The two coexist and are additional and not alternative. An award under Article 32 or 226 does not bar a suit, and what is paid is adjusted against whatever the suit yields.
- In practice the writ has displaced the suit in the cases where it is available, because it is faster, cheaper, free of the immunity argument and does not require proof of fault.
- The suit remains necessary in three situations: where no fundamental right is engaged, as in ordinary governmental carelessness with property; where the facts are seriously disputed and cannot be resolved on affidavits; and where the quantum requires a trial, as with a catastrophic injury whose future care must be costed.
- And the suit is the only route against a private defendant, the fundamental rights being guaranteed against the State: TORT 110.
6. What a Claimant Should Do
The situation | The route |
Custodial death, torture, illegal detention | Article 32 or 226. Sovereign immunity is no defence and the facts are within the authorities' knowledge |
Detention beyond sentence or after acquittal | Article 32 or 226. The violation is documentary and admits of no dispute |
Injury in a government hospital, school or institution | The writ where Article 21 is engaged; a suit for the full quantum |
Loss of or damage to property seized by authorities | A suit. Nagendra Rao disposes of the immunity, and no fundamental right is ordinarily engaged |
A government vehicle causing an accident | A claim under the Motor Vehicles Act, 1988, where no question of immunity arises at all |
Negligence by a commercial undertaking of the State | A suit on ordinary principles. Running a railway, a hospital or a transport service is not a sovereign function |
Environmental harm by a State enterprise | The writ jurisdiction or the National Green Tribunal, with absolute liability and the polluter pays principle |
⚠ Why India kept a doctrine England abolished, and what filled the gap England abolished the Crown's immunity in tort by the Crown Proceedings Act 1947, and the question of sovereign functions simply ceased to arise there. India inherited the same common law, wrote Article 300 to preserve the existing position until Parliament legislated, and then never legislated. The result is that the governing distinction in Indian law still descends from a decision of the Supreme Court of Bombay given in 1861 about a Government dockyard, and that the highest court of a republic found itself in 1965 unable to compensate a jeweller whose gold a policeman had stolen from a police station. What filled the gap was not the legislature but the constitutional jurisdiction. Confronted with Kasturilal and unable to overrule it without disturbing Article 300, the Court built a second route to the same destination, resting not on the law of torts but on the Constitution itself, where an immunity derived from the prerogative of the Crown could have no application at all. The route works, and works quickly, but it has a shape that its origins explain rather than justify: it is discretionary where the suit was a matter of right, it is confined to violations of fundamental rights, and it assesses compensation summarily. Those are the marks of a remedy improvised to escape a rule that should have been repealed, and they are the reason the ordinary suit still matters in exactly the cases the writ handles worst. |
7. The Position Stated Shortly
1. State tort liability is vicarious and rests on Article 300, which preserves rather than defines the liability.
2. The constitutional tort is a direct public law liability for the violation of a fundamental right, under Articles 32 and 226.
3. The ordinary claim requires proof of a servant's tort in the course of employment; the constitutional claim requires no proof of fault at all.
4. Sovereign immunity survives for the primary and inalienable functions in the ordinary claim, and is no defence whatever in the constitutional one.
5. Kasturilal denied relief to a jeweller whose seized gold was misappropriated, the seizure being an exercise of a sovereign power.
6. N. Nagendra Rao holds that sovereign immunity has no relevance today and confines it to functions that are primary and inalienable.
7. Rudul Sah began the constitutional jurisdiction, and Nilabati Behera placed it on the footing of a distinct public law liability.
8. Challa Ramkrishna Reddy holds that sovereign immunity cannot defeat a claim founded on the violation of a fundamental right.
9. Chandrima Das holds that running the railways is a commercial and not a sovereign function, and that Article 21 protects persons and not only citizens.
10. The two remedies are additional and not alternative, and the suit remains necessary where no fundamental right is engaged, where the facts are disputed, or where the quantum needs a trial.