This article has been written by Ms. Shreya Bhattacharya, a 2^nd year BBA LL. B student of Adamas University, Kolkata.

Introduction 

The issue of state tort liability has sparked numerous fascinating legal discussions. There is no statute in India that addresses the State’s accountability for torts committed by its servants. Article 300 of the Indian Constitution of 1950 specifies the culpability of the Union or a State for a tortious conduct of the government.

Section 176 of the Government of India Act, 1935, inspired Article 300 of the Constitution. This can be traced back to Section 32 of the Government of India Act, 1915, which has its origins in Section 65 of the Government of India Act, 1858. Section 65 of the Government of India Act of 1858 stated that “all people and bodies politic shall and may have and take the same suits, for India, as they could have done against the said Company.”

Thus, it will be clear that the Government of India and the Government of each State are in line to succeed the East India Company according to the chain of legislation starting with the Act of 1858. In other words, the Government’s liability is equivalent to that of the East India Company prior to 1858.

Article 300

1. Subject to any provisions that may be made by an Act of Parliament or of the Legislature of such State enacted pursuant to powers conferred by this Constitution, the Government of India and the Government of a State may sue or be sued in relation to their respective affairs in the same cases as the Dominion of India and the corresponding provinces or the corresponding States.
2. (a) The Union of India shall be deemed to have taken the place of the Dominion of India in any legal proceedings to which the Dominion of India is a party at the beginning of this Constitution if the Union of India is a party to such proceedings; and

(b) In any judicial action in which a Province or an Indian State is a party, the equivalent State is presumed to be substituted for the province or the Indian State.

The first section of Article 300 deals to the way lawsuits by or against the government may be filed, according to an overview of the provision. A State may sue and be sued by the name of the State, or by the name of the Union of India, according to the law.

The other portion states, among other things, that if the Constitution had not been passed, the Union of India or a State may have sued or been sued in respect to its affairs in cases along the same lines as those of the Dominion of India or a matching Indian State, as the case may be. The third half states that the legislative of the State or the Parliament would be able to make suitable laws for the subject covered by Article 300. (1).

Case Laws

• Nobin Chunder Dey V. Secretary of State– The plaintiff claimed damages after he was wrongfully denied a licence to sell certain excisable liquors and drugs, which led to the closure of his business. Kolkata (Calcutta) High Court rejected this claim on the grounds that granting or denying a licence is a sovereign function that is exempt from the State’s tortious liability. Since then, other legal rulings have been based on the distinction between the State’s sovereign and non-sovereign functions.
• P and O Navigation Company V. Secretary of State for India– In this case, the plaintiff’s horse-drawn carriage was struck by an iron funnel piece that some workers were carrying while performing repairs on a government ship. Plaintiffs filed a claim for damages. Due to the government of India’s servants’ negligence, the plaintiff filed a lawsuit against the State Secretary for India-in-council. Although he expressed some uncertainty as to whether the plaintiff’s coachman had not approached in a way that was beyond what was strictly necessary, the Small Causes Court judge found that the dockyard personnel were negligent. He made his argument before the Supreme Court. Through the Chief Justice, the Supreme Court rendered an extremely knowledgeable decision. Speaking through Chief Justice Peackok, the Supreme Court of Kolkata (Calcutta) declared that “the Government will be accountable for the activities done by its servants while executing non-sovereign functions, but it won’t be liable for damage inflicted while pursuing sovereign functions.
• Secretary of State V. Hari Bhanji– The fact that an act is carried out in the exercise of a sovereign function and is not one that could be carried out by a private individual does not oust its justification, according to the court, which has denied the existence of any distinction between sovereign and non-sovereign functions. In its First Report from 1956, the Law Commission emphasised the necessity for comprehensive legislation like the Crown Proceedings Act, 1947 to establish the Government’s tortious liability considering the uncertainties surrounding State accountability and various judicial rulings. The Government (Liability in Torts) Bill was introduced in Parliament in 1967, according to the Law Commission Report, although it has not yet become a law. The purpose of the law is to specify how the government is responsible for the wrongdoings of its employees, agents, and independent contractors.

Evaluation

The Supreme Court’s ground-breaking decision in the Devaki Nandan case provided the foundation for the unique ideas of Constitutional Tort and Compensatory Jurisprudence. The petitioner in this case had to wait twelve years before his pension was granted. The Apex Court awarded Rs. 25000 as an exemplary cost for pestering the petitioner in its ruling without any deliberation. 

• Rudal Shah V. State of Bihar- Rudal Shah, the petitioner, spent more than 14 years in prison while being held against his will. He requested his immediate release in a Habeas Corpus petition, and among other things, he asked for compensation for his wrongful detention as well as the cost of his rehabilitation. After his release, the court was asked, “Can the court pass an order for the payment of money in the exercise of its jurisdiction under Article 32? To what extent does this order constitute compensation for the loss of a basic right? The court’s favourable response to this question marked a significant advancement in our legal system’s understanding of compensatory-cumulative constitutional torts.

In two ways, Rudal Shah’s choice was significant. It first established that a breach of a constitutional right can result in civil liability that is enforceable in a civil court and, secondly, it established the legal foundations for a theory of liability under which a violation of the right to personal liberty might result in civil liability. The judgment was made with great care for preserving and upholding a citizen’s fundamental rights rather than the sovereign/non-sovereign dichotomy.

• Saheli V. Commissioner of Police– Kasturi Lal cited the stunning verdict in Vidyawati, which was frozen, appropriately in this case. The State was found responsible for the nine-year-old boy’s death, which resulted from police beatings and abuse. The Delhi Administration was required to provide Rs 75,000 compensation payment. The importance of this case lies in two factors: first, the restoration of the Vidyawati ratio; and, second, the Delhi Administration’s ability to obtain compensation from the officers deemed accountable for the occurrence.

Conclusion

Therefore, constitutional tort allows the victim of a constitutional right violation to receive compensation, in the form of exemplary damages. The state may be held responsible for its tortious actions under Article 300. In India, constitutional tort has not gained much more prominence. The Supreme Court’s significant ruling in the Rudal Shah case was the first to make the principle of compensatory remedies for the violation of fundamental rights widely known.

References:-

1. https://www.legalservicesindia.com/articles/dct.htm
2. https://www.legalserviceindia.com/legal/article-3375-constitutional-tort-judicial-analysis.html
3. Law of Torts, R.K. Bangia.
4. https://blog.ipleaders.in/constitutional-tort-law-deals-vicarious-liability-state/

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