In England crown proceeding Act, 1947 deals with the liability of crown regarding tort committed by its servant. Liability of crown is just like the private person. In India we do not have any separate act to deal with liability of state in India. However Art. 300 of the Indian Constitution states.
“(1) The government of India may sue and be sued by the name of 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 provision which may be made but act of parliament or of the Legislature of such state enacted by virtue of power conferred by this constitution, sue or be sued in relation to their respective affairs in the like case as Dominion of India and corresponding provinces or the corresponding Indian states might have sued or been sued if his constitution had not been enacted.”
Thus government of India and of State can be sued for their tortuous Act. As this Article does not enlist the circumstances under which we can sue the State for the tortuous act of its servant we should analyse the pre constitution Decision in this regard. One of the most leading cases which dealt with the liability of East India Co. Peninsular and Oriental Steam Navigation Company Vs. Secretary of State (1868-69)5Bom HCR App1 P1.
In this case distinction between sovereign and no sovereign function of the State was drawn and it was held that IEC could be hauled for tortious act committed by its servant while discharging non sovereign function only and no liability can be extended to tortious act committed while discharging sovereign function.
ADVERTISEMENTS:
Non Sovereign function means function which can be carried out by the private individual without any delegation of power by the Government. The Apex court upheld this decision of distinction between sovereign and non sovereign function in the case of Kasturi Lai Ralia Ram Jain Vs. State of U.P. AIR 1962 SC1039 But now these days the concept of welfare State is playing the role of pivot in the administration of what is called JUSTICE, we can see number of decisions of the Apex court which bypass the decision of the Apex Court in Kasturi Lai Case.
In Smt. Basava Kom Dyamogona Patil Vs. State of Mysore, the Apex Court held that after seizure of a thing State becomes the bailed of that thing and is under an obligation to keep it safely and is under a duty to return it to lawful claimant, if State fails to carry out this duty then it is liable to pay compensation. In Sbastian M. Hongary Vs. Union of India AIR 1984 SC A026, the apex Court awarded compensation for disappearance of person from the custody of military person.
In the state of Gujarat vs. Govindbhai Jakhubhai, 2000 (4) Civil LJ 265 (Guj. HC), the police constable fired gun shot wrongfully and without justification resulting in imputation of leg of the plaintiff the state was held liable.
This Article was dealt in length by the apex court in Achatrao Haribhau Kodwa vs. State of Maharashtra 1996 (2) Civil LJ 101 SC. Question involved was vicarious liability of State for its employees. In this case death of lady was caused due to negligent operation and failure to take necessary precautions by doctor of medical college. Manner in which operation was conducted and negligence in leaving Mop (towel) inside abdomen which caused formation of pus inside body proves negligence on the part of doctor. State held liable for negligent act of doctors.
ADVERTISEMENTS:
As suggested by the Law Commission there is need to prescribe the liability of the State under the law of torts and in the interest of Justice we should avoid the arbitrary distinction between the sovereign and non sovereign function of the State and must look for the just provision against the preserver as well.
King can do no wrong should be interpreted literally, if King violates my right but not compensates me then no doubt king is doing wrong, to overcome his wrong he is bound to compensate me and save the web of jural relationship, he has been carrying with his subject.