• Ms Asima Amin Nazki

Tortious liability of the State


State liability refers to the liability of the state arising from the acts of omission/ commission committed by its servants. It has been governed by written or unwritten laws and is not a static concept. The State’s liability for the tortious acts of its servants, known as the tortious liability of the State, makes it liable, voluntarily or involuntarily, for acts of omission and commission, and puts it before the Court of Law in a claim for unliquidated damages to such acts. This liability is also a branch of the Law of Torts. Law of Torts like various other laws has travelled through the British to this country and is now varied because it is regulated by local laws and constitutional provisions.

English law: In England, the Crown’s outright insusceptibility was acknowledged under precedent-based law. The administration depended on the maxim “the King can’t be blamed under any circumstance”. In 1863, in Tobin v. R., the court observed: “if the Crown were at risk in tort, the rule might have appeared to be insignificant”. In 1947 the Crown Proceeding Act was enacted which put the Government in an indistinguishable position from a private person’s view.

Indian Law: The maxim ‘the king can’t be blamed under any circumstance’ was never acknowledged in India. The government’s absolute insusceptibility was not understood in the Indian legal system before the constitution’s beginning and in numerous cases, the government was subjected to its employees’ convoluted actions. According to Article 294(4) of the Constitution, the liability of the Government of the Union or a Government of the State can arise ‘from some contract or other.’ Article 12 of the Indian Constitution defines the term ‘state’. Under Article 300 (1), the degree of such liability is settled. It states the Union of India or State Government’s liability to be the same as that of Dominion of India and the Provision before the Constitution commenced.

The idea of open responsibility involves an open concern which is imperative. It is a settled law that every single optional power must be sensibly practised in greater open intrigue. In Arvind Dattatreya v. Maharashtra State, the Supreme Court refused the transfer of a police officer because the transfer of the officer was nothing but a mala fide exercise of the power to demoralize honest officers who would efficiently discharge the duties of a public office. It was observed that the Government demoralizes the officers who discharge the duties honestly and diligently and bring to book the persons indulging in black marketing and contrabanding.

Respondeat Superior

Respondent Superior (Let the master answer) was brought to the premise of the subordinates’ limited economic capacity, and the irresponsible behaviour of superiors such as masters or employers was controlled. This doctrine is based on public policy since it aims to assign the risks usually associated with it to the business. When applying this doctrine, an employer and the master are liable for the negligent commissions or omissions of an employee and the servant which occur during employment. Nevertheless, a relationship between the superior and the subordinate should be established for the liability to fall upon the superiors.

Actions performed by the subordinates during their jobs or agency under an employer or a master’s explicit or implied authority, respectively. There are two requirements of the doctrine:

  • A true master-servant and the employer-employee relationship.

  • The tortious act of a servant and an employee must be one within the scope of his employment. The ‘scope of employment refers to the act performed under the express or implied authority of the superiors.

In the case of Automobiles Transport vs. Dewalal and ors, the Rajasthan High Court held that there is always the presumption that a vehicle is driven on the order of the driver, or by his approved agent or servant, and it is up to the appellant to prove that such presumption is unjustified and not confirmed. In the case of Smt. Savita Garg vs. The Director, National Heart Institute, the Supreme Court held that, in the employment contract, the hospital is the principal responsible for the actions of the agent, i.e. one of his doctors, if the court and the complainant are unable to justify that there was no negligence or recklessness on their part and that they were acting with due care and caution.

Qui-Facit per Alium Facit per se

Qui facit per alium facit per se is a fundamental statutory maxim of agency law. It is a maxim frequently stated when discussing the employer’s liability for the employee’s actions as regards vicarious liability. According to this maxim, by employing servants the master is obliged to perform the duties, he is responsible for their actions in the same way as he is responsible for his actions. Indirectly, in the role portrayed by the agent, the concept is in practice or present such that the role performed is seen as the work of the agent himself. Anything that a principal can do for itself can be done through an agent. The exception to that maxim would be personal acts of nature.

In H.E. Nasser Abdulla Hussain vs. Dy. City a tenet of law canonized the dictum: “Qui facit per alium facit per se”. It was held in the case of Ballavdas Agarwala vs. Shri J. C. Chakravarty, that the sections vicariously fastened the responsibility on the masters for the acts of the servants. In K.T.M.S. Mohd. And Anr vs. Union of India, it was held that the Indian Income-tax Act is a self-contained Code, which is exhaustive of the matters dealt with and its provisions portray an intention to depart from the common rule of Qui facit per alium facit per se.

Compensation by State

The word ‘tort’ (civil wrong- the violation of legal obligation) has been defined in Chambers Dictionary in the following words: - “Tort is any wrong or injury not arising out of contract for which there is a remedy by compensation or damages.” Therefore, tort occurs either from infringement of no contractual obligation or from neglect of civic duty. In other words, a tort is a civil wrong, for which damages are the only remedy. The breach of obligation towards people, in general, is the basic prerequisite for the execution of the tort. Though tort is a civil wrong, it’d be wrong to imply that all civil mistakes are tort.

According to section 70 of the Indian Contract Act, if a person is lawfully doing anything for another person or delivering anything to him the other person enjoys the profit thereof, the latter is obliged to indemnify the former or restore the thing so done or delivered to him. If Section 70’s conditions are met, then the government would be liable to pay compensation for the work performed or services rendered by the state. Section 70 is not based on a subsisting contract between the parties but a quasi-contract or restitution basis. This encourages an individual selling goods or providing services not for free to demand compensation from the person receiving the value of the same. This is a duty that exists on equal grounds and it does not appear to be an explicit agreement or contract.

If the agreement with the Government is null and void according to Article 299(1), the party obtaining the advantage under that agreement is obliged to restore it or indemnify the individual from whom it was obtained. Therefore, if a contractor agrees with the government to construct the down payment received and the agreement is found to be void as the conditions of Article 299(1) have not been met, the government may recover the amount advanced to the contractor according to Section 65 of the Indian Contract Act. Section 65 provides that if an agreement is found to be invalid or a contract is invalid, any person who has received any benefit under such agreement or contract is obliged to restore it and compensate the person from whom it was received.

A public servant might be incompetent in the performance of his duty and obtaining compensation from him is difficult. The compensation is more important to the aggrieved person than punishment. The State must also be vicariously held responsible for the wrongdoings of its servants. In Bhim Singh v. the State of J&K, where the petitioner, a member of the Legislative Assembly, was arrested while he was travelling to Srinagar to attend the Legislative Assembly in gross violation of his constitutional rights under Article 21 and Article 22(2) of the Constitution, the court granted the petitioner monetary compensation of Rs. 50,000 by way of exemplary costs. In Lucknow Development Authority v. M.K. Gupta, the Supreme Court observed that when the public servant causes injustice and pain to the common man mala fide, and capricious acts while discharging official duties, it makes the State liable to pay damages from public funds to the aggrieved individual. The State is constitutionally obliged to recover the reimbursement sum from the public servant in question.

The author is a Fifth-year Law Student pursuing B.A. LL.B from Central University of Kashmir.

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