Vicarious Liability of the State

The Government may be held liable for the acts committed by the people working under the Government and this liability of the government arises by the principle of Vicarious liability. The purpose and need of this liability is same as that of Vicarious liability added to that of the concept of Socialisation of Compensation.

The position in England was such that the ‘King can do no wrong’ and thus he was never held liable for the acts of his servants. This position changed with the commencement of  Crown Proceedings Act 1947, and presently the king can be held liable for the acts of his servants similarly like private individuals.

India does not have any such act in force. The position of State liability as stated in Article 300 of the Constitution is as under: Clause (1) of Article 300 of the Constitution provides first, that 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.

When it comes to the liability of government for its servants actions, the ruling principle is that the Government is not liable for torts committed by its employees in the exercise of sovereign functions. Sovereign functions are those functions which can be exclusively performed by the government.

Though, here it is pertinent to note that this position is being construed very liberally in modern India, when the State has become a Welfare State. Today the expectation from the government is not only to protect its people from external aggression and internal disturbance but also to take care of its citizens from the cradle to the grave. This is to say that, earlier sovereign functions were construed very broadly and strictly but today the case is to the contrary.

The distinction between the two i.e. sovereign and non-sovereign functions has been considered at length in N. Nagendra Rao v. State of AP3,

‘In the modern sense, the distinction between sovereign or non-sovereign power thus does not interest that for acts performed by the State, either in its legislative or executive capacity, it should not be answerable in torts. That would be illogical and impracticable. It would be in conflict with even modern notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is, whether the State is answerable for such actions in courts of law.’

A landmark case for the concept of State’s Vicarious liability is Peninsular and Oriental Steam Navigation Company v. Secretary of State for India. 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. The Court in the present case held that maintenance of dockyard is a commercial function and a government is liable vicariously while performing such duties.

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