Vicarious Liability of the State

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TABLE OF CONTENTS I. Disclaimer II. Acknowledgments III. Table of Contents IV. Introduction V. Objective VI. Methodology VII. Case Study 1. Facts 2. Judgement * By the Trial Court * By the High Court * By the Supreme Court 3. Basis of Judgement 4. Case reference VIII. Sovereign Immunity 1. Journey of the Doctrine 1. 1Pre Constitutional Era 1. 2 Post Independence and Constitution of India IX. Sovereign Functions & Non-Sovereign Function X. Critically Analysis of the case 1. Vicarious liability 2. Negligence 3. Violation of Right to Property 4.

Misappropriation 5. Case Reference XI. Conclusion………………………………………………………………………….. …….. XII. Bibliography…………………………………………………………………….. …. ……. Introduction “Law is the great civilizing machinery. It liberates the desire to  build  and subdues  the desire to destroy. And if war can tear us apart, Law  can unite us – out of fear, or love or reason, or all three. Law is the greatest human invention. All the rest, give man mastery over his world. Law gives him mastery over himself” Justice has been regarded as one of the greatest concerns of mankind on this lanet. Edmund Burke said, that justice is itself the “great standing policy of civil society”. Scholars of political science and legal theory tell us, that the administration of justice is one of the primary objects for which society was formed. Our Constitution, in its very preamble, speaks of justice as one of the great values which its makers have cherished. The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us, where the state claim immunity for its tortious acts and denies compensation to the aggrieved party.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent. The case reported in 1965 “Kasturilal Raila Ram Jain vs. tate of Uttar Pradesh” is the topic or our project. In this case the plaintiff was taken into custody on suspicion of being in possession of stolen property. His property including certain quantity of gold and silver was taken from him and kept in the Malkhana till the disposal of the case. The gold and silver was misappropriated by a police constable who fled to Pakistan. The appellant sued the State of Uttar Pradesh for return of the gold and silver and as alternative claimed damages for loss caused by negligence of the Meerut police.

The state contended that no liability would accrue for acts committed by a public servant where such acts were related to the exercise of sovereign power of the state. The Supreme Court held that the state was not liable. So here we are trying to show that the judgement passed by the Supreme Court of India was not in favour of justice. Justice still waiting…. and the judgement should be overruled by the Supreme Court, because the concept of sovereign function needs amendment. The law is dynamic it should be change according to the situation. In this case law is look like static which is not good for the justice Aims and Objective To critically examine the case. * Study the various aspects of the case. * To Understand what is the sovereign and non sovereign functions * Origin of sovereign and non sovereign function in india * Identifying the practical presence sovereign functions with the help of U. K. and U. S. A. * How sovereign functions are related with vicarious liability of the state * Discuss some prominent cases related with sovereign functions of the state * Trying to justifying that judgment given by the Supreme Court of India is obsolete in real sense and it needed overrule by the larger bench of Supreme Court. * To request the govt. f India that Art. 300 of Indian Constitution require amendment. RESEARCH METHODOLOGY Research methodology is a systematised investigation to gain new knowledge about the phenomena or problems. But in its wider sense ‘methodology’ includes the philosophy and practice of the whole research process. It provides standards which the researchers use for integrating data and reaching conclusions. Doctrinal Research Methodology: Doctrinal research means a research that has carried out on a legal proposition or propositions by way of analysing the existing statutory provisions and cases by applying the reasoning power.

It involves analysis of case law, arranging, ordering and systematising legal propositions and study of legal institutions through legal reasoning or rational deduction. Sources of data i. Primary or Original sources: The Acts of Parliament and the Acts passed by the legislature, statutory commission reportsfall under this category of legislation. The case laws decided by the Supreme Court and High Courts which are binding on lower courts fall under the category of precedents are the primary or original sources of doctrinal research. ii. Secondary sources:

Text books on law, commentaries on Bare Acts, interpretation by someone, articles, magazines, news-papers etc. are the parts of secondary sources. In our research primary sources are Constitution of India, Supreme Court Judgements, Law Commission reports, Statutory Acts etc. Secondary sources are law books like R. K. Bangia, articles related with our topic etc. METHOD OF WRITING The researchers have adopted a critical and descriptive style of writing. MODE OF CITATION A uniform mode of citation has been adopted and followed consistently throughout the paper. SCOPE AND LIMITATIONS

Due to the presence of a large number of tort concepts which deals with the social and legal aspects, the researchers have limited their scope to the concepts of Sovereign and non Sovereign Functions, Vicarious Liability and Negligence. The limitations of time and space have compelled the researchers to limit the number of comparative case studies. Case analysis Basic information about the case * Name of the case: Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh on 29 September, 1964 * Name of the Parties: PETITIONER: KASTURILAL RALIA RAM JAIN Vs. RESPONDENT: THE STATE OF UTTAR PRADESH Citations: 1965 AIR 1039, 1965 SCR (1) 375 * Bench: It was the bench of five Judges of Supreme Court (including the Chief Justice of India) GAJENDRAGADKAR, P. B. (CJ) WANCHOO, K. N. HIDAYATULLAH, M. DAYAL, RAGHUBAR MUDHOLKAR, J. R. Facts: The appellant is a firm which deals in bullion and other goods at Amritsar. It was duly registered under the Indian Partnership Act. Ralia Ram was one of its partners. On the 20th September, 1947 Ralia Ram arrived at Meerut about midnight. His object in going to Meerut was to sell gold, silver and other goods in the Meerut market.

During the passing through the Chaupla Bazar with this object, he was taken into custody by three police constables. His belongings were then searched and he was taken to the Kotwali Police Station. He was detained in the police lock-up there and his belongings which consisted of gold, weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers, were seized from him and kept in police custody. On the 21st September, 1947 he was released on bail, and when he demanded for his belongings than some time thereafter the silver seized from him was returned to him, but the gold was not returned to him.

Later the plaintiff filed the present suit against the respondent in which he claimed a decree that the gold seized from him should either be returned to him, or in the alternative, its value should be ordered to be paid to him. The alternative claim thus made by him consisted of Rs. 11,075 as the price of the gold and Rs. 355 as interest by way of damages as well as future interest. Later it was found that Mohammad Amir, who was then the Head Constable, and it had been kept in the police Malkhana under his charge. Mohd. Amir, however, misappropriated the gold and fled away to Pakistan on the 17th October, 1947.

He had also misappropriated some other cash and articles deposited in the Malkhana before he left India. So According to the plaintiff the state should be held liable for the wrongful act of the Mohammad Amir. Judgement By the Trial Court When the case came to the trial Court than two substantial questions arose between: 1. Whether the police officers in question were guilty of negligence in the matter of taking care of the gold which had been seized from Ralia Ram, 2. Whether the respondent was liable to compensate the appellant for the loss caused to it by the negligence of the public servants employed by the respondent.

The trial Court found in favour of the appellant on both these issues, and since the gold in question could not be ordered to be returned to the appellant, a decree was passed in its favour for Rs. 11,430. By the High Court After the Judgement given by the trial Court the respondent challenged the correctness of this decree by an appeal before the Allahabad High Court and it was urged on its behalf that the trial Court was in error in regard to both the findings recorded by it in favour of the appellant by the use of constitutional right which in mention under Article 226 Respondent filed an Appeal in Allahabad High Court in First Appeal No. 7 of 1950. These pleas have been upheld by the High Court. It has found that no negligence had been established against the police officers in question and that even if it was assumed that the police officers were negligent and their negligence led to the loss of gold, that would not justify the appellant’s claim for a money decree against the respondent. So it was held that Respondent is not liable. By the Supreme Court After the Judgement given by the High Court Plaintiff went to the Supreme Court by the using Appellate Jurisdiction of the Supreme Court in Civil Appeal No. 05 of 1963. The Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers while dealing with the property of Ralia Ram, which they had seized in exercise of their statutory powers. The power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute and they are powers which can be properly categorized as sovereign powers. Hence the basis of the judgment in Kasturi Lal was two-fold – The act was done in the purported exercise of a statutory power.

Secondly, the act was done in the exercise of a sovereign function. In this case sovereign function defines by the Supreme Court is: The power to arrest a person, to search him to seize property found with him, is powers conferred on specified officers by statute and are powers which could be properly characterised as sovereign powers. Therefore, though the negligent act was committed by the employees of the respondent-State during the course of their employment, the claim against the State could not be sustained, because, the employment in question was of the category which could claim the special characteristic of sovereign power.

Supreme Court said that the power to arrest a person is sovereign power because it is define in the statue of the Government. Section 54(I) (iv) of the Code of Criminal Procedure Provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. It is under this provision that Ralia Ram was arrested at midnight.

It was apprehended by the police officers that the gold and silver articles which he was carrying with him might be stolen property, and so, his arrest can be said to be justified under section 54 (I) (iv). Section 550 of the Code of Criminal Procedure confers powers on police officers to seize property suspected to be stolen. It provides inter alia, that any police officer may seize property which may be suspected to have been stolen and so, gold and silver in the possession of Ralia Ram were seized in exercise of the powers conferred on the police officers under s. 50 of the Code. After Ralia Ram was arrested and before his articles were seized, he was searched, and such a search is justified by the provisions of s. 51 of the Code. Basis of the judgment in Kasturi Lal case Reverting to the basis of the judgment in Kasturi Lal, we find that the basis was two-fold:- * The act was done in the purported exercise of a statutory power. * The act was done in the exercise of a sovereign function Further this The Constitution Bench of court, Gajendragadkar, C.

J observed in this case was: “If a tortuous act is committed by the public servant and it gives rise to claim for damages, the question to ask is: Was the tortuous act committed by the Public servant in discharge of stuatory functions or the delegation of sovereign powers of the state to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortuous act will not lie. On the other hand, if tortuous act has been committed by a public servant in discharging of duties assigned to him not by virtue of the elegation of any sovereign power an action for damages would lie. ” Case Reference * Vidyawati V. state of Rajasthan * Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India * Smt Basavva Kom Dyamangouda Patil v. State of Mysor SOVEREIGN IMMUNITY The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us, where the state claims immunity for its tortuous acts and denies compensation to the aggrieved party. MEANING AND ORIGIN

Sovereign immunity is a justification for wrongs committed by the State or its representatives, seemingly based on grounds of public policy. Thus, even when all the elements of an actionable claim are presented, liability can be avoided by this justification. The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants.

Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent This doctrine held sway in Indian courts since the mid nineteenth century to till recently. When a genuine claim for damages is brought in the courts, and it is refuted by an ancient doctrine seemingly having no relevance, there is bound to be resentment and demands for review.

The Indian courts, in order not let genuine claims are defeated, kept narrowing the scope of sovereign functions, so that victims would receive damages. The Law Commission too in its very first report too recommended the abolition of this outdated doctrine. But for various reasons, the draft bill for the abolition of this doctrine was never passed, and thus it was left to the courts to decide on the compatibility of this doctrine in accordance with the Constitution of India.

Before we proceed to discuss the extent of sovereign immunity as it has been carved out over the years, it is necessary to take a look at the Article 300 of the Constitution of India which spells out the liability of the Union or State in act of the Government. ARTICLE 300 Initially in India, the distinction between sovereign and non-sovereign functions was maintained in relation to principle immunity of Government for the tortuous acts of its servants. In India, there is no legislation, which governs the liability of the State.

It is article 300 of the Constitution of India, 1950, which specifies the liability of the Union or State with respect to an act of the Government. The Article 300 of the Constitution originated from Section 176 of the Government of India Act, 1935. Under section 176 of the Government of India Act, 1935, the liability was coextensive with that of secretary of State for India under the Government of India Act, 1915, which in term made it coextensive with that of the East India Company prior to the Government of India Act, 1858.

Section 65 of the Government of India Act, 1858, provided that all persons shall and may take such remedies and proceedings against Secretary of State for India as they would have taken against the East India Company. It will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of India and Government of each State are in line of succession of the East India Company. In other words, the liability of the Government is the same as that of the East India Company before, 1858. Article 300 reads as: 1) 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 any may, subject to any provision 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. 2) If at the commencement of this Constitution – (a) Any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and (b) Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings. An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted.

It enacts that a State may sue and be sued by the name of the Union of India and a State may sue and be sued by the name of the State. The Second part provides, inter alia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted. The Third part provides that the Parliament or the legislatures of State are competent to make appropriate provisions in regard to the topic covered by Article 300(1).

JOURNEY OF THE DOCTRINE PRE CONSTITUTIONAL ERA In India the story of the birth of the doctrine of Sovereign Immunity begins with the decision of Peacock C. J. in P. and O. Navigation Company v. Secretary of State for India, a servant of the plaintiffs (company) was travelling from Garden Reach to Calcutta in a carriage driven by a pair of horses. The accident took place when the coach was passing through the government dockyard. Some government workmen employed in the government dockyard were carrying a heavy piece of iron rod for the purpose of repairing a steamer.

The men carrying the iron rod were going in the middle of the road. When the carriage of the plaintiff drove up nearer the coachman gave a warning to the men carrying the iron rod and the coachman slowed its speed: The men carrying the iron rod attempted to get out of the way. Those in front tried to go on the one side of the road while those behind tried to go the other side of the road. The consequence of this was loss of time, bringing the carriage close to them before they had left the centre of the road. Seeing the horses and carriage they got alarmed and suddenly dropped the iron rod and ran away.

The iron rod fell resulting in injuries to one horse which fell on the iron rod. The company filed a suit against the Secretary of the State for the damages caused by the negligence of the servants employed by the Government of India. In this case the terms “Sovereign” and “Non Sovereign” were used while deciding the liability of the East India Company for the torts committed by its servants. In this case the provision of the Government of India Act, 1858 for the first time came before the Calcutta Supreme Court for judicial interpretation and C. J.

Peacock determined the vicarious liability of the East India Company by classifying its functions into “sovereign “and “non sovereign”. Two divergent views were expressed by the courts after this landmark decision in which the most important decision was given by the Madras High Court in the case of Hari Bhan Ji v. Secretary of State, In this case, the Madras High Court held that State immunity was confined to acts of State. In the P ; O Case, the ruling did not go beyond acts of State, while giving illustrations of situations where the immunity was available.

It was defined that Acts of State, are acts done in the exercise of sovereign power, where the act complained of is professedly done under the sanction of municipal law, and in exercise of powers conferred by law. The mere fact that it is done by the sovereign powers and is not an act which could possibly be done by a private individual does not oust the jurisdiction of the civil court. where the Madras High Court held that the immunity of the ‘East India’ company extended only to what were called the ‘acts of state’, strictly so called and that the distinction between sovereign and Non-sovereign functions was not a well founded one.

The Calcutta High Court in one of its earlier cases of Nobin Chunder Dey v. Secretary of State for India, had taken the view that in respect of acts done in the exercise of sovereign function by the East India Company no suit could be entertained against the company Again in case of Secretary of State v. Cockraft, the Courts added a further test that if the State derived benefit from the exercise of Sovereign powers, it would be liable. No attempt however has been made in the cases to draw a clear and coherent distinction between Sovereign and Non-Sovereign functions at all. POST INDEPENDENCE

After the commencement of the Constitution, perhaps the first major case which came up before the Supreme Court for the determination of liability of government for torts of its employees was the case of State of Rajasthan v. Vidyawat. In this case the respondents filed a suit for the damages made by an employee of a State and the case questioned whether the State was liable for the tortious act of its servant – The Court held that the liability of the State in respect of the tortious act by its servant within the scope of his employment and functioning as such was similar to that any other case. It was held in this case that the State should be as much liable for tort in respect of tortuous acts committed by its servant within the scope of his employment and functioning as such, as any other employer. . The facts of this case may shortly be stated as follows: The first defendant Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. In February, 1952, he was employed as the driver of a Government jeep car, registered as No. RUM 49, under the Collector of Udaipur.

The car had been sent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was walking on the footpath by the said of the public road in Udaipur city, causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital where he had been removed for treatment.

The plaintiffs who are Jagdishlal’s widow and a minor daughter, aged three years, through her mother as next friend sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs. 25,000/- from both the defendants. The first defendant remained ex-parte. The suit was contested only by the second defendant on a number of issues. Both the Courts below have agreed in finding that the first defendant was rash and negligent in driving the jeep car resulting in the accident and the ultimate death of Jagdishlal.

The second defendant, who was the respondent in the High Court, and is the appellant before us, contested the suit chiefly on the ground that it was not liable for the tortious act of its employee. The Trial Court, decreed the suit against the first defendant ex-parte, and dismissed it without costs against the second defendant. On appeal by the plaintiffs, the High Court of Rajasthan allowed the appeal and decreed the suit against the second defendant also, with costs in both the Courts. The State of Rajasthan applied for and obtained the necessary certificate that the case fulfils the requirements of Art. 33(1)(a) of the Constitution of India. High Court rightly observed that an important point of law of general public importance, namely, the extent of the liability of the State, in tort, was involved. . Judgement: In State of Rajasthan V. Vidyawati, the Supreme Court reviewed the position of law, under article 300 of the Constitution, and the facts and circumstances leading to the formation of the State of Rajasthan. . The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law.

The Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. No provision of law, statutory or otherwise, was presented, that could exonerate the Rajasthan Union form vicarious liability for the acts of its servants. It has not been claimed before us, that the common law of the United Kingdom, before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or even earlier. It must, therefore, be held that the State of Rajasthan has failed to ischarge the burden of establishing the case. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract. The constitution has established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities.

Thus, there is no justification, in principle, or in public interest, for the State not to be held liable vicariously for tortious acts of its servant. The Court deliberately departed from the Common Law rule that a civil servant cannot maintain a suit against the Crown. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution.

As the cause in this case arose after the coming into effect of the Constitution, it is only recognising the old established rule, going back to more than 100 years at least, in upholding the vicarious liability of the State. Article 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But, so long as the Legislature has not expressed its intention to the contrary, it must be held that the law is what it has been, ever since the days of the East India Company.

In brief, court rejected the plea of immunity of the State and held that the State was liable for the tortious act of the driver like any other employer. Later, in case of the Kasturi Lal v. State of U. P, the Apex court took a different view and the entire thing got confused once again. In this case, the Supreme Court followed the rule laid down in P. S. O. Steam Navigation case by distinguishing Sovereign and non-Sovereign functions of the state and held that abuse of police power is a Sovereign act, therefore State is not liable.

The latest case of State of A. P. v. Challa Ramakrishna Reddy in this case the petitioner and his father were lodged in a jail, wherein one day bombs were hurled at them by their rivals, causing the death of the father and injuries to the petitioner. The victims were having previous knowledge of the impending attack, which they conveyed to the authorities, but no additional security was provided to them. On the contrary, there was gross negligence since there was a great relaxation in the number of police men who were to guard the jail on that fateful day.

Thus, on the grounds of negligence a suit was filed by the petitioner against the Government. While the case had been dismissed in trial court, the case was allowed in the High Court, where the Court even while accepting the principle of Kasturilal, took consideration of Article 21 of the Constitution and came to the conclusion that since the Right to Life was part of the Fundamental Rights of a person, that person cannot be deprived of his life and liberty except in accordance with the procedure established by law.

Further, by virtue of Maneka Gandhi v. Union of India, the procedure too should have been fair and reasonable. Thus, the High Court held that since the negligence which led to the incident was both unlawful and opposed to Article 21, and that since the statutory concept of sovereign immunity could not override the constitutional provisions, the claim for violation of fundamental rights could not be violated by statutory immunities.

On appeal by the State, the Supreme Court dismissed the appeal and ruled: “The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof. Thus, the ratio of this case was that sovereign immunity, which is a statutory justification, cannot be applied in case of violation of fundamental rights, because statutory provisions cannot override constitutional provisions. The procedural aspect of this was that aggrieved persons can successfully file their petitions in trial courts for tortious acts committed by State, and there is no need to approach High Court or Supreme Court under Articles 226 or 32.

However, the court in this case even while holding that Kasturi Lal’s case had paled into insignificance and was no longer of binding value, did not consider the cases where no fundamental rights but other legal rights might be violated. The question that arises is whether in violation of such statutory rights, the sovereign immunity can be effectively claimed.

This issue can be decided only by a Constitutional bench of seven or more judges, if the need arises to overrule the Kasturi Lal case. The aforesaid judicial pronouncements clearly laid down the earlier approach of judiciary as revealed from various judicial pronouncements was to make distinction between sovereign and non-sovereign functions and exempting the government from tortuous liability in case the activity involved was a sovereign activity.

Later on, there has been significant change in the judicial attitude with respect to “Sovereign and Non-Sovereign dichotomy” as revealed from various judicial pronouncements where the courts, although have maintained the distinction between sovereign and non-sovereign functions yet in practice have transformed their attitude holding most of the functions of the government as non-sovereign. Consequently, there has been an expansion in the area of governmental liability in torts. So by this case it is clearly indicates that the distinction between Sovereign and non-Sovereign powers have no relevance in the present times.

The Apex Court held that the doctrine of Sovereign immunity is no longer valid. SOVEREIGN FUNCTIONS & NON-SOVEREIGN FUNCTIONS DISTINCTION between Sovereign and Non Sovereign Functions The Supreme Court has emphasized upon the significance of making such a distinction as in the present time when, in the pursuit of their welfare ideal, the various governments “naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved”.

Therefore, it is necessary to limit the area of sovereign powers, so that acts committed in relation to “nongovernmental and no sovereign” activities did not go uncompensated. EXPLANATION The immunity of the crown in the United Kingdom was based on the feudalistic notions of justice, namely, that the King was incapable of doing wrong, and, therefore, of authorizing or instigating one, and that he could not be sued in his own courts… Now that we have, by our constitution, established a Republican form of Government, and one of its objectives is to establish a ocialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable for its acts. On the question of ‘what is sovereign function’, different opinions have been given time and again and attempts have been made to explain in different ways: 1. Primary and Inalienable Functions: Krishna Iyer J. n Bangalore Water Supply case said that the definition of ‘industry’ although of wide amplitude can be restricted to take out of its purview certain sovereign functions of the State limited to its ‘inalienable functions’. As to what are ‘inalienable functions’, Lord Watson, in Coomber v. Justices of Berks, describes the functions such as administration of justice, maintenance of order and repression of crime, as among the primary and inalienable functions of a constitutional Government.

However, the Supreme Court has also held that the definition can include the regal primary and inalienable functions of the State, though statutory delegated functions to a Corporation and the ambit of such functions cannot be extended so as to include the activities of a modern State and must be confined to legislative power, administration of law and judicial power. 2. Regal & NonRegal: Isaacs, J. in his dissenting judgment in The Federated Sate School Teachers’ Association of Australia v. The State of Victoria, concisely states thus at p. 85: “Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to what of a private company similarly authorised. These words clearly mark out the ambit of the regal functions as distinguished from the other powers of a State. . Governmental Functions: What is meant by the use of the term “sovereign”, in relation to the activities of the State, is more accurately brought out by using the term “governmental” functions although there are difficulties here also inasmuch as the Government has entered largely new fields of industry. Therefore, only those services which are governed by separate rules and constitutional provisions, such as Articles 310 and 311 should, strictly speaking, be excluded from the sphere of industry by necessary implication. ” 4.

Constitutional Functions: The learned judges in the Bangalore Water Supply ; Severage Board v. A. Rajappa a Sewerage Board case seem to have confined only such sovereign functions outside the purview of ‘industry’ which can be termed strictly as constitutional functions of the three wings of the State i. e. executive, legislature and judiciary. However, the concept is still the same with insubstantial differences between the terms. This can be noticed by the following observation by the Court in Nagendera Rao and Co. v.

The State of Andhra Pradesh, as to which function could be, and should be, taken as regal or sovereign function has been recently examined by a Bench of the Court, where in the words of Hansaria J, the old and archaic concept of a sovereignty does not survive as sovereignty now vests in the people. It is because of this that in an Australian case the distinction between sovereign and non-sovereign functions was categorised as regal and non-regal. In some cases the expression used is State function, whereas in some Governmental function.

Critically analysis of the judgement After the judgement passed by the Supreme Court in Kasturilal’s case has been severely criticised by the jurists and authors alike. HM Seervai obserbed: “it failed to distinguish between an act of State and an act done or purporting to be done under the authority of municipal law, thus overlooking the distinction made in the P and O case between trading and the sovereign functions of the company which had been consistently followed is clearly wrong and is made per incuriam. In this case it is decided by the Supreme Court of India that State should not be held liable because in this case police officer was performing sovereign functions of the state. In our point of view the state should be held liable on the basis of these reasons: VICARIOUS LIABILITY “The doctrine of vicarious liability has not grown from any very clear logical or legal principle but from social convenience” “Vicarious means done or suffered on behalf of another”.

It implies that the liability imposed on one for the act of another is referred to as vicarious liability. We are all aware of the fact that vicarious liability has existed even without tort law specifically mentioning it. But very less emphasis is paid on the need for vicarious liability. What is that triggered the need for such a concept? The social theory of tort law answers this question. It has always been seen that an elder takes the responsibility of a younger person. Vicarious liability is also a logical extension of the same norm.

RESPONDEAT SUPERIOR It is a legal maxim which means “let the master answer”. It imposes a liability on the master to take the responsibility for the actions of his servant. Since the master is classified into a higher stratum of the society, it is expected that he would exercise a higher degree of responsibility as compared to his servant. DEEPER POCKET THEORY In today’s world the master is no longer just an individual. The scope of this word has been widened to include artificial persons like business firms and other enterprise.

As per this theory the basic aim is to redress the victim, the means by which it is done takes a back seat. The economic stability of an enterprise is much more than that of its employees and hence liability is imposed on the enterprise associated with the defendant. The purpose is to save an individual from disastrous financial consequences arising out of the liability which would require him to provide compensation. After all “to err is human”. QUI FACIT PER ALIUM FACIT PER SE

This maxim says that “he who does something through another is deemed to have done it himself”. Since the master is benefiting from the work of his servant, it is a morally as well as socially accepted obligation on him to share the untoward consequences of the act if any. “By employing him, I set the whole thing in motion, and what he does, being done for my benefit, and under my direction, I am responsible for the consequences of doing it” Relevancy of Vicarious liability in this case

In this case Police officer was the servant and the State of UP was the master. While performing his duty Police officer committed the wrong during the course of employment. So the police officer should be held liable in this case. NEGLIGENCE Negligence is a failure to exercise the Care that a reasonably prudent person would exercise in like circumstances. According to Winfield,” Negligence as a tort is the breach of a Legal duty to take care which results in damages undesired by the defendant to the plaintiff. Generally by negligence we mean a breach of duty caused by the omission in doing something i. e. carelessly or negligently committing an act. For negligence the plaintiff must prove that; i) The defendant was under a duty of care to the plaintiff, ii) there was a breach of that duty by the defendant, and iii) the plaintiff suffered damage as a result of that breach of duty. Relevancy in this case: In this case police officer was negligent during the safety of the goods which were kept in the police station.

It was the duty of the police officer to protect or care the goods. He was fail in doing so or the duty was breach by him in protecting goods (gold), and by doing so plaintiff suffered damage as a result of that breach of duty. So it is proof that police officer was negligent, so he should be held liable in this case. U. P. Police Regulation Act Chapter XIV of these Regulations deals with the custody and disposal of property. Section 165 provides a detailed procedure for dealing with the disposal of movable property of which the police takes possession.

It is not necessary to refer to these provisions; it would be enough to state that these provisions indicate that when property is seized by the police officers, meticulous care is required to be taken for making a proper list of the property seized, describing it, weighing it, and taking all reasonable steps to ensure its safety. Clause (5) of Regulation 165 provides that, when the property consists of gold, silver, jewellery or other valuables, it must be sent in a sealed packet after being weighed, and its weight must be noted in the general diary and on the list which accompanies the packet.

It requires that a set of weights and scales should be kept at each police station. Regulation 166 is important for our purpose. It reads thus:- “Unless the Magistrate otherwise directs, property of every description, except cash exceeding Rs. 100 and property of equal value and_property pertaining to cases of importance, which will be kept by the Prosecuting Inspector in a separate box under lock and key in the treasury, will remain in the custody of the malkhana moharrir under the general control and responsibility of the Prosecuting Inspector until it has been finally disposed of. Interpretation of the section The wording of the Regulation is somewhat complex and con- fusing, but its purport and meaning are clear. In substance, it provides that property of every description will remain in the custody of the malkhana moharrir under the general control and responsibility of the Prosecuting Inspector until it has been finally disposed of. This provision is subject to the instructions to the contrary which the Magistrate may issue. In other words, unless the Magistrate directs otherwise, the normal rule is that the property should emain in the Malkhana. But this rule does not apply to cash exceeding Rs. 100 and property of equal value and property pertaining to cases of importance. Relevancy in this case In this case police officer was negligent in dealing with this section. He violated the U. P. Police Regulation Act. It is clearly mention in this section that when something was seized by the police officer it should be kept in a separate box with a list of weight, quantity of the item, nature of the item, until it has been finally disposed to its owner.

But the police officer was fail in performing his duty and he didn’t make any list and not kept it in a separate box. So the police officer should be held liable for his wrongful act in this case. So we can say that it is the statutory obligation to return the goods to the plaintiff and state was fail to doing this so the suit is maintainable against the State. Criminal breach of Trust or misappropriation Section 409 of IPC “Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. ” Relevancy in this case In this case there was a breach of trust by the Police servant in his capacity of a public servant.

So by the provision of the IPC the police officer should be held liable. Right to Property It is a constitutional right which is define under article 300-A of Indian Constitution. It says that, “No person shall be deprived of property save by authority of law”. Earlier it was in the part III of the Indian constitution under Article 19(1(f) but after 44th amendment of the Indian Constitution, Article 19(1)(f) repealed. And Right to Property under Article 300-A was formed. Relevancy in this case In this case plaintiff was deprived by his property by the act of the policeman.

In this case his constitutional right is violated, so he should be compensated by the state on behalf of the policeman. Bailment Section 148th of the Indian Contract 1872 defines bailment. According to this “A ‘bailment’ is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the ‘bailor’. The person to whom they are delivered is called the ‘bailee’. Explanation. —If a person is already in possession of the goods of other contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment. Relevancy in this case In this case Kasturilal is the bailor because his property was delivered to the police or we can say he is the owner of the property and the property was given to the Police officer so he was the bailee. 151. Care to be taken by bailee. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances. It is the duty of the bailee to exercise his duty and if he fail to perform such duty than the bailee should be held liable for this. So in this case bailee failed to exercise the required degree of care and roximately that caused damage or loss of the property and the state should be held liable for this. Policeman failed to perform the proper care and by this the plaintiff lost his gold. The state should be held liable. Case reference In N. Nagendra Rao and Co. v. State of A. P, was a judgement of signal importance in the judicial history of India because it evaporated the Doctrine of Sovereign Immunity in this great Republican, Parliamentary and Welfare Democracy. The judgment in this case explicitly shows the evolution of the view of judiciary.

In fact India has long felt the need of a comprehensive legislation like Indian Torts Act to democratize the area of sovereign immunity. The people of India have long being denied their rights with regard to the tortious liability of the State. The mind set of the State is required to appreciate the irrelevance of the colonial doctrine which denied the legitimate rights of Indians. It further strengthens the cause for a petition for Indian Torts Act. It is more urgently required in post constitutional era and it stands ignored for over sixty years now in a pro bono publico state.

In this case Supreme Court held that when due to the negligent act of the officers of the state a citizen suffers any damage the state will be liable to pay compensation and the principle of sovereign immunity of state will not absolve him from this liability. The court held that in modern concept of sovereignty the doctrine of sovereign immunity stands diluted and the distinction between sovereign and non sovereign functions no longer exists. The court noted the dissatisfactory condition of the law in this regard and suggested for enacting appropriate legislation to remove the uncertainty in this area.

Rejecting the contention of the state the Supreme Court held that the state was liable vicariously for the negligence committed by its officers in discharge of public duty conferred on them under a statute. As regards the immunity of the state on the ground of sovereign function, the court held that the traditional concept of sovereignty has undergone a considerable change in the modern times and the line of distinction between sovereign and non sovereign powers no longer survives. No civilised system can permit an executive as it is sovereign. The concept of public interest has changed with structural change in the society.

No legal system can place the state above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of the officers of the state without remedy. The need of the state to have extraordinary powers cannot be doubted. But it cannot be claimed that the claim of the common man be thrown out merely because the act was done by its officer even though it was against law. Need of the state, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare state is not shaken.

In welfare state, functions of the state are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of the people in almost every sphere. The demarcation between sovereign and non sovereign powers for which no rational basis survives has largely disappeared. The court further said that sovereign immunity was never available if the state was not involved in commercial or private function nor it is available where its officers are guilty of interfering with life and the liberty of a citizen not warranted by law.

In both the cases the state is vicariously liable to compensate. The doctrine of sovereign immunity has no relevance now when the concept of sovereignty has itself undergone a major change. “Sovereignty is now with the people. The people of India made the Constitution and gave it to themselves. The structure and functions of the state have been created and constituted to serve the people”. In Peoples Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters, a labourer was taken to the police station for doing some work.

When he demanded wages he was severely beaten and ultimately succumbed to the injuries. It was held that the state was liable to pay Rs. 75000/- as compensation to the family of the deceased. In Saheli v. Commissioner of Police, case the state was held to be liable for the tortious acts of its employees when a nine year old boy had died due to the beating by the police officer acting in excess of power vested in him. The court directed the Government to pay Rs. 75000/- as compensation to the mother of the child. In State of A. P. v. C. Ramkrishna Reddy a prisoner who had informed the jail uthorities that he apprehended danger to his life but no action was taken on this information and no measures were taken for his safety. He was killed in the prison. It was also found that a police officer was a party to the conspiracy to kill the prisoner which was hatched in the prison. The court held that in case of violation of fundamental right the defence of sovereign immunity which is an old and archaic defence cannot be accepted and the government and the police are liable to compensate the victim. The court said that the personal liberty should be given supremacy over sovereign immunity.

Such rights cannot be defeated by pleading the old and archaic defence of sovereign immunity which has been rejected in several cases by the Supreme Court. So, on the basis these case references we can say that state should be held liable in kasturilal vs state of up case. This case should be overruled by the Supreme Court. POSITION IN FOREIGN COUNTRIES United Kingdom, In the United Kingdom, the Crown enjoyed immunity from tortious liability because of the maxim “the King can do no wrong. ” Another aspect of this was that the state could not be sued in its courts without its consent.

However, in practice, the government had a salutary practice of settling the matter with the injured person, which, however, was as a matter of grace, and not as a right. The position drastically changed with the introduction of the Crown Proceedings Act, 1947, which made the Crown liable for torts to the same extent as a private person of full age and capacity but subject to the exceptions of defence of realm, maintenance of armed forces and postal services. The Crown thus became vicariously liable to a very large extent for the torts committed by its servants.

United State of America In the United States, the Federal Tort Claims Act, 1946 regulates the tortious liability of the Federal Government. The Federal Government is liable to the same extent as a private individual under like circumstances, but intentional torts like assault, battery and false imprisonment are excluded. The State is not liable for any tort committed by its servants as long as the duties are performed with due care. Australia In the Australia also this doctrine of sovereign immunity has been ignored as can be seen from the decision in Parker v.

The Commonwealth of Australia, where two ships of the Royal Australian Navy, viz. Melbourne and Voyager, came into collision on the highseas about 20 miles off the Australian cost. Melbourne struck the Voyager and she sank along with some men therein resulting in the death of one Parker. His widow brought an action against the Commonwealth for damages on the basis that her husband’s death was caused by the negligence of the officers and crew of the ships of the Commonwealth. The deceased Parker was a civilian employed by the Navy Department in a technical capacity.

In those facts and circumstances Windeyer, J. , of the High Court of Australia held that the Commonwealth was liable in tort for damages and that the widow of Parker could bring in the suit for damages for the negligent acts or omission of the members of the Royal Australian Navy. ANALYSIS OF THE PRESENT POSITION Scope of the Chapter We propose, in this Chapter, to attempt a very brief analysis of the present position on the subject of liability of the State in tort, on the basis of the selective material that has been presented in the preceding Chapters of this project.

Basis of the various propositions In the next paragraph, we propose to present an analytical statement of the present position in the form of certain propositions. The basis of these propositions may be briefly explained. a) The distinction between sovereign and non-sovereign functions, in the context of vicarious liability of the State in tort, originated as a result of the reading (by various courts) of the judgment (of the erstwhile Supreme Court at Calcutta) in the P &O case. This distinction came to occupy a central place in this area. ) No doubt, in course of time, the scope of the expression “sovereign functions” came to be considerably narrowed down and there was greater readiness, on the part of various courts, to regard many Governmental acts as “non sovereign”. c) This has considerably reduced the practical importance of this distinction, which, however, still continues to survive, in theory. d) The defence of sovereign functions yet subsists. For example, defence of the state, maintenance of law and order and public order, security of the state, judicial functions, etc. ) We must, of course, note that there is no liability of the State, for “acts of State”, as properly understood. f) Finally, notice has also to be taken of the fact that statutes in India often contain “protection clauses”, granting immunity to various actions of the State and its officers, for acts done or “intended to be done” (in good faith) in pursuance of a particular enactment. Of course, such protection clauses  must be constitutionally valid. Conclusion

It is being gradually realised everywhere that the concept of sovereign immunity is an anachronistic and outdated justification in a republican nation which guarantees life and liberty as well as rule of law. There seems to be no reason why the State should not compensate the victims of its actions under sovereign powers, because the benefit of such action accrues to all citizens, and it is highly unfair to put the burden on just a few. This seems to be a classic case of robbing Peter to pay Paul.

A lesson should be learnt from the practice of Indian Army, which sometimes needs to requisition border lying farmlands for laying mines and establishing bunkers in hostile situations. In such situations, the Army duly compensates the landowners, instead of taking refuge in the defence of sovereign immunity. Lastly, there is an urgent need to reconsider the Kasturi Lal’s case by a larger bench because the issue whether the defence of sovereign immunity will apply in case of violation of legal rights needs to be decided.

In order to establish a truly equalitarian state abiding by rule of law, the ghost of Kasturi Lal needs to be finally put to rest. ——————————————– [ 1 ]. ”. Lyndon B. Johnson, TIME September 24, 1965 page 48. [ 2 ]. S. R. Myneni, Legal Research Methodology, Allahabad Law Agency, Faridabad, 2011, p 4 [ 3 ]. For example law commission report [ 4 ]. For example commentary on Constitution of India by D. D. Basu [ 5 ]. Indian Partnership Act 1932 [ 6 ].

It is one of the three Jurisdiction of the Supreme Court which is mention under Article 133(1)”An appeal shall lie to the Supreme Court from any judgment, decree or final order in a proceeding of a High Court in the territory of India” [ 7 ]. Code of Criminal Procedure (Cr. PC 1972) [ 8 ]. ‘Doctrine of Sovereign Immunity’, Neeraj Arora, available at http://www. neerajaarora. com/doctrine-of-sovereign-immunity/, last viewed November 23, 2011. [ 9 ]. ‘Sovereign Immunity- No Defence in Private Law’, Amardeep Garje, available at http://ssrn. om/abstract=1347948 [ 10 ]. Law Commission of India, First Report, pages 40-42, para V. [ 11 ]. M. P. Jain & S. N. Jain, ‘Principles of Administrive Law’. 5th Edition (2009) [ 12 ]. 5 Bom HCR App. 1 [ 13 ]. (1882) 5 ILR Mad. 273 [ 14 ]. Supra note 5, at pg. 783 [ 15 ]. ILR 1 Cal 11 (1875) [ 16 ]. AIR 1915 Mad. 993 [ 17 ]. AIR 1962 SC 933 [ 18 ]. AIR 1965 SC 1039 [ 19 ]. (2000) 5 SCC 712 [ 20 ]. AIR 1978 SC 597. [ 21 ]. “Sovereign Immunity: No Defence in Private Law”, Amardeep Garje, available at: http://ssrn. om/abstract=1347948. (last visited on 1/12/2011) [ 22 ]. Kasturi Lal v. State of UP AIR 1965 SC 1039 [ 23 ]. State of Rajasthan v. Vidhyawati AIR 1962 SC 933 [ 24 ]. (1883-84) 9 App. Cas. 61,74 [ 25 ]. State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors. (1960)ILLJ251SC [ 26 ]. Agricultural Produce Market Committee v. Shri Ashok Harikuni & Anr. Etc. AIR2000SC3116 [ 27 ]. Beg CJ, Bangalore Water Supply case. [ 28 ]. (1978) ILLJ 349 SC [ 29 ]. AIR1994SC2663 [ 30 ]. W. V. Rogers, Winfield and Jolowicz on Tort (14th edn. London: Sweet and Maxwell, 1994) at 623. [ 31 ]. P. R. Aiyar, The Law lexicon, (2nd edn. , New Delhi: Wadhwa and Company, 2002) at 1958. [ 32 ]. A. O. Sykes, “The Economics of Vicarious Liability”, 93(7) The Yale Law Journal 1231, 1231 (1984). [ 33 ]. Duncan v. Finlater (I839) C1. & F. 894, 9Io. [ 34 ]. Winfield and Jolowicz tort, 12th edition,p. 69 [ 35 ]. Indian Penal Code 1860 [ 36 ]. http://www. indiankanoon. org/doc/1326844/ (last visiting on 11th December 2011) [ 37 ]. Article 19th – Right to Freedom 38 ]. 44th amendment 1978 [ 39 ]. Indian Contract Act 1872, section 148 [ 40 ]. Kavita Trehan v. Balsara Hygiene Products Ltd. , AIR 1992 Del 103. [ 41 ]. AIR 1994 6 SCC. [ 42 ]. Alok Mishra ,The doctrine of sovereign immunity – a journey from P&O Steam Navigation Company to N. Nagendra rao and thereafter 2007 [ 43 ]. D. D. Basu, Constitutional Law in India, Wadhwa and Co. , Nagpur 1979, p 7 [ 44 ]. AIR 1989 4 SCC 242 [ 45 ]. AIR 1990 SC. 513 [ 46 ]. AIR 2000 SC. 2083 [ 47 ]. 112 CLR 295 (Aus)

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