Introduction
Vicarious liability is a liability which arises on someone for acts done by another. However, for vicarious liability to incur it is necessary that there should be a certain kind of relationship between them and the wrongful act should be, in a certain way ,connected to that relationship. It is based on the general principal ‘qui facit per alium facit per se‘, which means “he who does an act through another is deemed in law to do it himself”. Such liability arises generally between the following:
- Liability of principal for tort of his agent
- Liability of partners for each other’s tort
- Liability of the master for tort of his servant
Evolution in England
At Common Law, the Crown could not be sued for wrongs authorized by it or conducted by their servants in the course of employment. The wrongdoer was personally held liable and he could not take defense of State necessity. Later on, the Crown started defending torts done by its servants in the course of employment and the judgement against them were satisfied from the Treasury.
However, this position changed after the Crown Proceedings Act, 1947. Now the Crown is liable for a tort committed by its servants, just like a private individual. Section 2(1) of the Act states :”Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.”
Evolution in India
Article 300 of Indian Constitution establishes that the Union of India and state governments can sue or be sued in legal matters, continuing the practice from the pre-Constitution Dominion of India. This is subject to legislative action. It also directs that ongoing legal cases against the Dominion of India or provinces are transferred to the new Union of India or respective states. Thus, Article 300 provides that the Union of India and the States are juristic persons for the purpose of suit or proceeding. This Article was represents the post- constitutional position but before that we had Section 176, 32 of the Government of India Act, 1935, Section 65 of the Government of India Act, 1858.
Landmark Cases that led to the development of State’s Liability
The first and foremost case that gave the base of State’s tortious liability was Peninsular and Oriental Steam Navigation Company v. Secretary of State for India(1861). In this case, due to negligence on the part of defendent’s servant, plaintiff’s horse was injured. This servant was employed by Government of India at the Kidderporr Dockyard in Calcutta, hence plaintiff filed a suit against Secretary of State for India in Council for the damage caused. Here, the court tried to look into State’s liability and held that if the act was done in the exercise of sovereign functions then the State would not have been liable but if the function was non- sovereign, which means it could be performed by a private person without any delegated power of government, then State would not be liable. In this circumstance, the defendent’s servant was assigned the task of maintenance of dockyard which was a non- sovereign function, hence held not liable.
In Vidyawati v. Lolumal( 1957), a car was being taken from the workshop to the Collector’s bungalow for his use. Mid way this car knocked plantiff’s husband who died. The Rajasthan High Court, treated State like an ordinary employee and held the State of Rajasthan liable. On appeal, the Supreme Court also ruled in favour of Vidyawati. From this case it was observed that due to changing time State has developed from a mere police State to a welfare State and hence engages itself into numerous activities in which anyone can engage without need of delegation legislation. In such case, it would not be fair to immune State for tortious liability of its servant in the course of employment.
Even after this decision the position of State’s liability was vague. In the case of Kasturi Lal v. State of U.P(1965), Kasturi Lal’s belongings were taken into custody by three policemen, on the suspicion of possessing stolen property which was 103 tolas of gold and over 2 maunds of silver. Later on he was released but the head constable fled with the gold to Pakistan. However, the State was held not liable because the police officers were acting in discharge of statutory duty and their power to keep the property in their custody was a sovereign power.
Hence, we can say that torts committed while performing duty in discharge of obligations imposes by law has been considered a defense in India. Kasturi Lal’s case was applied in serveral cases but its force has been reduced by a number of decisions of Supreme Court.
The courts have held State liable in cases where tort was committed due to negligence in not maintaining roads, not making inspection of supply lines, pilferaging supply lines etc. India has seen several cases where death was caused due to electrocution due to falling of live electric post on the passer by. The Electricity Boards were held liable under such circumstances.
In the case of Bhim Singh v. State of Jammu and Kashmir (1986), the Supreme Court acknowledged State’s liability to compensate when Fundamental rights, particularly Article 21 of India Constitution had been violated by State. Here, the petitioner, an MLA of J.K was wrongfully detained by police while he was going to attend assembly session. He wasn’t produced before the magistrate within 24 hours hence was deprived of his fundamental rights including right to personal liberty under Article 21. Therefore, the Supreme Court ordered the State to compensate him by paying exemplary damages amounting to ₹50, 000.
Similarly, in Rudal Shah v. State of Bihar (1983), the State was held liable for violating petitioner’s fundamental rights and was ordered to pay ₹30, 000 as interim measure in addition to payment of ₹5, 000.
In Ramjan v. State of Rajasthan (2008) , a new arena of constitutional tort was made. In this case the State was made liable to provide free and full medical aid and compensation to four victims of acid attack. It was held that it was State’s duty to maintain law and order and in case of any incompetency on their part they will be held liable. In this case, the victims were deprived of right to live with human dignity covered under Article 21 of the Constitution. This claim was based on strict liability which is in addition to private law remedy.
Liability of State in cases of deprivation of right to life as stated in Article 21 is also available to foreign nationals. In Chairman, Railway Board v. Chandrima Das(2000), a Bangladeshi woman was gang raped by railway employees during the course of their employment, in a railway building. Hence, the Central Government was held liable to pay damages to the victim.
Absence of Statutory Framework
The Law Commission in its First report, named, “Liability of State in tort” gave recommendation to enact an Act. For this purpose, The Government (Liability in Tort) Bill, 1967 was introduced in Lok Sabha. This Bill defined liability of Government towards third party for wrongs committed by its servants, agents and independent contractors employed by it. This bill hasn’t been passed till now.
Conclusion
From time to time, judiciary has made State liable for torts committed by its servants and has also given immunity to State in case of genuine sovereign functions. Even though due to absence of any Act, the position regarding State’s liability is uncertain the courts have taken a balanced approach in making State accountable and discharging public functions.
