POSITION OF FEMALE AS KARTA AFTER HINDU

SUCCESSION ACT
A Project Submitted To

ARMY INSTITUTE OF LAW, MOHALI

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD
OF A DEGREE OF B.A. L.L.B.

Submitted To: Submitted By:

Dr. Alamdeep Kaur Aditya Aryan

(Asst. professor) Roll No.: 2369

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 PUNJABI UNIVERSITY, PATIALA (PUNJAB) 2024-25

DECLARATION

I hereby declare that the project work entitled “Position of females as karta after hindu
succession act” submitted to the Army Institute of Law, Mohali is an original work done by
me under the supervision of Dr Alameep Kaur.
Aditya Aryan
2369
Semester 4, Section A

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 ACKNOWLEDGEMENT

In preparation for my assignment, had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude towards Dr Alamdeep Kaur for giving me
guidance for the assignment throughout numerous consultations. I would also like to extend
my gratitude to all those who have directly and indirectly guided me in writing this
assignment.
I would like to thank my family and peers, whose constant encouragement kept me motivated
to work towards the completion of this project. I would also like to extend my gratitude
towards the Army Institute of Law, Mohali and Dr Tejinder Kaur, the Principal of, the Army
Institute of Law, Mohali for giving me this golden opportunity of making a project on such
an interesting and engaging topic.

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 INDEX

S NO TOPIC PAGE NO.

1 INTRODUCTION 5
2 LEGAL FOUNDATION OF TORTIOUS LIABILITY 7
3 HISTORICAL CONTEXT 8
4 DISTINCTION BETWEEN SOVEREIGN-SOVEREIGN 9
FUNCTIONS
5 EVOLUTION OF STATE LIABILITY 14
6 LIABILITY FOR VIOLATION OF FUNDAMENTAL 15
RIGHTS
7 ROLE OF PIL IN ENFORCING STATE’S LIABILITY 17
8 CHALLENGES AND LIMITATIONS 18
9 SUGGESTIONS AND REFORMS 21
10 CONCLUSION 23
11 BIBLIOGRAPHY 24

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 INTRODUCTION
The Hindu Succession Act of 2005 was a landmark legislation that sought to bring gender
equality in matters of inheritance and property rights within Hindu Undivided Families
(HUFs). Karta is the head of the family and is responsible for overseeing the Hindu undivided
property. when lineal descendants of a certain family unit together, they form a Hindu
undivided Family, Which is a distinct entity. Karta is the family's oldest male member. He is
in charge of every action and activity that takes place within the family. Karta's position is sui
generis1. Often referred to as the manager, they oversee the daily costs of the family and their
properties. Compared to other family members, the Karta possesses greater powers. The
family's coparceners are limited to becoming Karta. One of the significant changes brought
about by this Act was the recognition of females as Karta, a role historically reserved for
male members of the family. This marked a crucial departure from tradition and heralded a
more inclusive and equitable approach to family governance.

EVOLUTION OF THE CONCEPT OF FEMALES AS KARTA

As already discussed, the meaning and application of the name "Karta" have always been
very distinct and were not typically associated with women in India. Because they haven't
resolved on a position, the previous position on the female being Karta was unclear. This is
evident from the fact that there have been several situations where a woman demanded to be
a Karta and was granted permission under certain conditions. The Pandurang Dahake v.
Pandurang Gorle2 ruling was among the first to rule that a woman was a Karta. The plaintiff
in this case filed a lawsuit against the defendant to recover his debt, which was advanced on
pro notes that their mother—who served as both their manager and guardian—had executed.
In this instance, the mother of the minor, acting as their guardian and family manager, was
really looking after the property on their behalf and took out the contested loan for uses that
would have an impact on the entire family. Because the minor son was unable to handle
matters, the widow in this case requested that she be appointed as Karta in the current case
before the court. In spite of this, the widow was only allowed to remain Karta until her son
reached majority, according to the court's ruling in her favor. Hence, the court in this instance
acknowledged a woman as Karta, albeit with further limitations.

1
Sui generis is a Latin expression that translates to “of its own kind
2
Pandurang Dahake v Pandurang Gorle (1945) AIR Nag 178

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Later, the court heard other instances involving the granting of management authority to
female members and their designation as coparceners. "It is true under Mitakshara law, no
female can be coparcener, presumably because she does not possess the right by survivorship,
but we do think that either this right or the status of a coparcener is a sine qua non of
competency to become the manager of a joint Hindu family of which she is admittedly a
member," the ruling stated in one of the cases, Income Tax Commissioner v. Laxmi
Narayan3 She was considered as Karta of a family in which she has a personal interest.”
Thereafter, there was a case known as Commissioner of Income Tax v. Govindram Sugar
Mills,4 in which the mother requested to become the Karta because her sons were not getting
along and were constantly fighting. In the Karta case, the court decided that the co-
partnership rather than the individual's gender matters. In a Hindu undivided family, only a
Coparcener can become the Karta, with a few exceptions. For example, if the son is a minor
and unable to make decisions, the mother may act as his representative until the son reaches
majority because the mother is not eligible to be a coparcener and, thus, cannot be a Karta in
a Hindu undivided family.

FEMALE AS KARTA POSITION BEFORE 1956

Hindus in India are subject to a variety of customs that are taught in various schools and vary
depending on the region. Women have traditionally been thought to be mentally and
physically weaker than men. Hindu women's property rights are frequently disregarded by
Indian society due to its patriarchal structure, which results in their inequality and
subjugation.
As a result, property laws typically discriminate against women and favor men. Stridhana and
Women's Estate are the two categories of property that women are normally only permitted
to own and have limited control over. They were unable to inherit from their father and had
no authority over the family property, so they were unable to become Karta or have any
involvement in it.

3
Income Tax Commissioner v. Laxmi Narayan [1949] AIR Nag 128
4
Commissioner of Income Tax v. Govindram Sugar Mill AIR 1966 SC 24.

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 THE HINDU SUCCESSION ACT, 19565 (A PRECURSOR TO CHANGE)
This act was established to consolidate laws related to property and succession, introducing a
standardized system for inheritance and succession. It abolished the limited estate and
restricted ownership rights of Hindu women. With the implementation of this act, women
were granted complete authority and absolute rights to manage and dispose of their
property. Despite the fact that the meaning of Stridhana was made clearer, there were still a
lot of uncertainties that restricted the power of women. Daughters who were married had no
claim to their father's assets or division. In addition, a woman was not acknowledged as a
coparcener or Karta.

HINDU SUCCESSION AMENDMENT ACT, 20056 (A TURNING POINT)

The Amendment, Hindu Succession Amendment Act, 2005 is one of the most remarkable
and essential amendments which has been brought in when it comes to eradicating gender
biasness and discrimination which have been too prevalent in the Indian society. The purpose
of the Amendment was to improve the standing of women in India. This change was
necessary to end the struggle and suffering of women.
The Hindu Succession Amendment Act, 2005 was enacted by following the points in the
174th report of the 15th Law Commission. From this amendment onwards, the daughters
were
conferred with the property rights of the Hindu Joint Family. Major changes or amendments
can be pointed out in three points:
1. “Abolition of Survivorship”
2. “Abolishing the Son's Pious Obligation”
3. “Equal rights of daughters and sons.”
“Due to a lack of co-partnership requirements, a female member of the Hindu Undivided
Family (HUF) was unable to become its Karta. This was resolved by the case of Mrs. Sujata
Sharma v. Manu Gupta & Ors7. Due to Section 6 of the Amendment Act, Hindu men and
women now have equal rights to inheritance, which is a socially beneficial law8. Because of
this, if a male member of a HUF can become a Karta by virtue of being the oldest born
member of the family, the same will apply to the oldest born female member of the family
as well. It was further made clear that the Plaintiff's marital status has no bearing on her
5
Hindu succession Act 1956
6
The Hindu succession (Amendment) Act 2005
7
Sujata Sharma vs. Manu Gupta (2016) 226 DLT 647

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ability to inherit the coparcenary, which she succeeded in after the death.”
Briefly stated, Section 6(1)8 of the Amended Act states that a daughter of a Joint Hindu
Family of Mitakshara law becomes a coparcener (i) by birth, just like a son; (ii) she has
the same rights in the coparcener property as a son; (iii) she has the same liability in
the coparcener property as a son; and (iv) she is included in any reference to a Hindu
coparcener.
Each member of the Joint Hindu Family is entitled to their share, including a daughter,
mother, widow, predeceased son's daughter, and daughter's daughter. Wives and widowed
mothers are not entitled to demand a division of property, but in the event that one is made,
their share will be equal to that of their children.
Following the amendment, it was decided in the case of Shreya Vidyarthi v. Ashok
Vidyarthi & Ors9. that a daughter could be a Karta with all the same rights and privileges as
a son because she was a coparcener at the time.

CASE ANALYSIS

MRS. SUJATA SHARMA VS SHRI MANU GUPTA & ORS10(2016)

Facts of the Case -

D.R. Gupta & Sons, Hindu Undivided Family (HUF), with D.R. Gupta as
their Karta. 5 sons
were born to him. The eldest son succeeded D.R. Gupta as the Karta.
Eventually, each son also
passed away. Being the oldest male member still alive, the defendant
claimed to be the family's
Karta. The plaintiff contested this claim, citing her position as the family's
eldest following the
passing of her father and uncles. She is the family's eldest member and
coparcener

8
Section 6 of the Amendment Act, Hindu men and women now have equal rights to inheritance, which is a
socially beneficial law
9
Shreya Vidyarthi v. Ashok Vidyarthi & Ors (AIR 2016 SC 139)
10
Mrs. Sujata Sharma Vs Shri Manu Gupta & Ors (2011) 11 SCC 1

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Judgement-
As per the aforementioned amendment, daughters are entitled to the same privileges as their
sons in a family. The plaintiff's gender would not automatically disqualify her from the Karta
position. She must be accorded the same rights as a son, including the ability to serve as a
Karta for the HUF, since she is now also a coparcener by birth. The defendant raised some
objections, saying that giving a daughter the authority to manage the HUF property did not
fall under the definition of equal rights. In addition, he argued that the plaintiff was married
and could not make these kinds of claims. This Landmark judgement made it very clear that a
woman who is a coparcener can also become a Karta of the family.

CAN A WIDOW BE A KARTA?

SHREYA VIDYARTHI VS ASHOK VIDYARTHI & ORS (2015)

Facts of the Case -

Two wives were owned by one Hari Shankar Prasad. After his death, the second wife
managed day-to-day affairs and provided care for the family. In addition to receiving monthly
maintenance from a trust, she was the nominee for an insurance policy. It was argued that she
purchased the property using both joint family and her own funds. Later, disagreements over
property arose.

Judgement-

The court noted that a Hindu widow cannot act as a Karta since she is not a coparcener in her
husband's Hindu Undivided Family. However, if there are no male coparceners or family
members left after his husband's passing, the widow may take on the role of manager to
oversee day-to-day operations. The minor male coparcener's mother may assume
responsibility for running the household. Under certain conditions, she is also capable of
making decisions pertaining to the family.

VINEETA SHARMA VS RAKESH SHARMA AND ORS MANU11 (2020)

Facts of the Case -

11
Vineeta Sharma Vs Rakesh Sharma And Ors Manu/Sc/0582/2020

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Vineeta Sharma filed a case against her family as well as her brother Rakesh Sharma to claim
coparcenary rights on her ancestral property. The High Court upheld the case of Prakash Vs
Phulavati which stated that section 6 is not retrospective in operation and required the
coparcener and the daughter to be alive at the date of the commencement of the amendment
act. Since her father died before the commencement of the Hindu Succession (Amendment)
Act, 2005 she could not claim coparcenary rights on her ancestral property. Later she
approached the Apex Court with the issue.

Issues Raised -
1. Whether Section 6 of the Hindu Succession (Amendment) Act, 2005 require the
father to be alive as of 9th November 2005?
2. Whether the amendment to Section 6 is retrospective, prospective, or retroactive.
3. Can women be given equal rights as coparceners?

LEGAL FOUNDATION OF TORTIOUS LIABILITY

Article 300- while not explicitly enumerating a cause of action in tort has, through judicial
interpretation and

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its integration with common law doctrines, become a cornerstone in establishing the limits of
state immunity and the circumstances under which the state may be held liable for harmful
acts. Traditionally, the state enjoyed broad sovereign immunity as a safeguard for its
high-discretion functions and policy-making prerogatives. However, as India’s constitutional
jurisprudence evolved, courts began to emphasize that this immunity is not absolute when the
state or its agents acting in administrative capacities violates a duty of care owed to its
citizens.

In effect, Article 300 has been read in light of the foundational principles of negligence,
duty, breach, causation, and remediable damages, thereby carving out a judicial space where
the state’s failure to perform its statutory or common law obligations can result in liability.
Under this framework, even though the Constitution does not articulate liability in tort per se,
Article 300 ensures that when state actions stray from the bounds of fair and lawful conduct
especially in contexts that threaten basic human rights and constitutional guarantees a redress
mechanism is activated. This interpretative approach seeks to strike a delicate balance: it
protects the state’s essential administrative functions from frivolous litigation while
simultaneously advancing the constitutional commitment to accountability and individual
protection. Landmark judgments have reinforced the view that the state, when engaged in
non-sovereign activities—such as administrative functions or service delivery cannot hide
behind the shield of immunity if negligence or arbitrariness results in harm to the citizenry. In
doing so, Article 300 not only serves as a procedural gateway for claims against the state but
also reaffirms that governmental power is subject to the rule of law, ensuring that victims of
state-induced wrongs are afforded meaningful recourse.12

HISTORICAL CONTEXT
The historical evolution of tortious liability for the state in India can be traced to early
statutory regimes that, while not explicitly focused on tort law, laid the administrative and
legal groundwork for modern principles of state accountability. Two landmark statutes in this
evolution are the Government of India Act, 1858, and the Government of India Act, 1935.

GOVERNMENT OF INDIA ACT, 1858-

12
Article 300 of Indian Constitution

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Under the Government of India Act, 1858, the British government assumed direct control of
India from the East India Company following the events of 1857. This Act marked a
structural transformation of governance—transitioning from a corporate regime to one of
centralized Crown administration. However, during this early period, the doctrine of
sovereign immunity was strongly upheld. The state, viewed as the embodiment of the
sovereign, was largely shielded from tortious claims. Government actions taken in the
exercise of sovereign functions were viewed as matters of high policy and executive
discretion, and legal redress against such acts was severely limited. In this context, the
groundwork for tortious liability was indirectly established in that any move toward
accountability had to reconcile the need for effective governance with the protection afforded
by sovereign immunity13.

GOVERNMENT OF INDIA ACT 1935 -

in contrast, the Government of India Act, 1935 represented a significant constitutional and
administrative evolution. This Act introduced a far more detailed and modern framework of
government, with increased decentralization and the empowerment of provincial legislatures.
Although it did not expressly codify tort law or liability in the modern sense, its provisions
began to delineate between sovereign and administrative functions. This demarcation allowed
for a more nuanced understanding of state accountability. Judicial interpretation of the 1935
Act gradually drew a line: while the state maintained immunity over its purely sovereign,
policy-centric decisions, administrative actions—those carrying a duty of care towards the
citizenry—could not remain completely insulated from liability. Through a series of judicial
pronouncements, courts started to recognize that if a government agency or official acted
negligently in performing administrative functions, the traditional shield of immunity could
be overcome, thereby allowing victims an avenue for legal redress against the state.14

Thus, while the Government of India Act, 1858 solidified the concept of sovereign immunity
as a necessary element of statecraft under colonial rule, the Government of India Act, 1935
laid the conceptual foundations for the gradual erosion of absolute immunity in favour of
accountability in the realm of administrative actions. This historical progression from near-
absolute immunity to a more balanced approach in which the state could be held liable for its
negligent acts eventually informed post-independence jurisprudence. Successive judicial

13
Government of India Act, 1858
14
Government of India Act, 1935

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decisions in independent India have built upon these early statutory frameworks, reconciling
the state's need to perform governmental functions with the fundamental rights of its citizens
to seek redress when harmed by state actions.

MEANING OF ‘SUITS AND PROCEEDINGS’ UNDER ARTICLE 300

The phrase "suits and proceedings" under Article 300, typically from a legal context in the
Indian Constitution, refers to two key forms of legal actions involving the government or its
entities:

1. Suits: These are formal legal actions initiated in courts by one party against another,
seeking a specific judicial remedy. For example, this could include a case where an
individual sues the government for damages due to negligence.

2. Proceedings: This term is broader and encompasses all legal actions, whether they are
in courts or other legal forums. Proceedings can include actions like writ petitions,
appeals, tribunal hearings, or even arbitration cases.

3. Under Article 300, these terms ensure that the liability of the government, as well as
the legal remedies available to citizens, are universally applicable regardless of the
type of legal process being used.

DISTINCTION BETWEEN SOVEREIGN AND NON-SOVEREIGN

FUNCTION AS DERIVED FROM COMMON LAW -

1. HISTORICAL CONTEXT AND EVOLUTION IN COMMON LAW

In common law systems, the concept of sovereign immunity historically meant that "the King
can do no wrong." This doctrine provided absolute immunity to the Crown (or State) from
being sued in its courts. Over time, this principle evolved as governments began engaging in
activities outside traditional governance roles, like providing public services or entering into
commercial transactions.

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As a result, courts and legal scholars began to differentiate between:

 Sovereign Functions: Core government functions integral to the State's existence and
authority, immune from liability.

 Non-Sovereign Functions: Activities where the government acts like an ordinary

citizen or private entity, subject to the same legal liabilities as individuals or
corporations.

2. SOVEREIGN FUNCTIONS-

Definition:

Sovereign functions are activities that:

 Are performed in the exercise of governmental authority.

 Are essential to maintaining law, order, security, and governance.

 Involve policy decisions requiring the exercise of discretion by the State.

Characteristics:

 Non-Justiciable: Courts generally refrain from interfering in these actions because

they involve political or policy-making decisions.

 Immunity: The State cannot be held liable for acts done in the course of sovereign
functions.

 Public Interest Oriented: These actions benefit society at large rather than specific
individuals.

Examples:

1. National Defense: Decisions on military deployment or war strategies.

2. Legislation: Enacting laws or issuing ordinances.

3. Taxation: Levying and collecting taxes.

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 4. Administration of Justice: Judicial and quasi-judicial functions.

3. NON-SOVEREIGN FUNCTIONS

Definition:

Non-sovereign functions are activities that:

 Do not require the exercise of sovereign authority.

 Resemble private or commercial activities carried out by individuals or corporations.

 Can be performed by non-governmental entities.

Characteristics:

 Justiciable: Courts can intervene and hold the State accountable for negligence or
wrongdoing.

 Liability: The State is treated like a private party and can be sued in court.

 Transactional Nature: These actions often involve contractual or service-related

obligations.

Examples:

1. Running businesses like public transport or electricity supply.

2. Maintaining infrastructure or providing public amenities like water supply.

3. Commercial transactions like government procurement or public-private partnerships.

4. Tortious acts, such as negligence in hospital administration by government hospitals

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4. KEY DIFFERENTIATION BETWEEN SOVEREIGN AND NON-SOVEREIGN FUNCTIONS

Aspect Sovereign Functions Non-Sovereign Functions

Nature of Core governance activities, Administrative, commercial, or service
Activity essential to State authority. delivery roles.
State is subject to legal accountability
Liability Immunity from legal claims.
like a private entity.
Judicial Limited judicial scrutiny due to
Fully justiciable; courts can intervene.
Review policy discretion.
Law-making, taxation, national Contract disputes, negligence claims,
Examples
defense, etc. public utilities.

 P & O Steam Navigation Co. v. Secretary of State for India (1861): The case of P
& O Steam Navigation Co. v. Secretary of State for India15 (1861) is a landmark
decision that established the distinction between sovereign and non-sovereign
functions in the context of state liability. The case arose when the P & O Steam
Navigation Company claimed damages against the Secretary of State for India for
negligence in non-sovereign activities. The court held that the government could be
held liable for tortious acts committed during non-sovereign functions (those similar
to private commercial activities), rejecting absolute sovereign immunity in such cases.
This judgment laid the foundation for holding the state accountable for wrongful acts
in non-sovereign capacities and significantly influenced the evolution of tort law in
India.
 Kasturi Lal v. State of Uttar Pradesh (1965): In Kasturi Lal v. State of Uttar
Pradesh16 (1965), the Supreme Court of India upheld the doctrine of sovereign
immunity, ruling that the State could not be held liable for the negligence of police
officers who had misappropriated seized gold. The court reasoned that the officers
were performing a sovereign function—arrest and seizure under statutory authority—
which shielded the State from liability. While it reinforced the distinction between
sovereign and non-sovereign functions, the judgment has been criticized for limiting
remedies for citizens harmed by state negligence.

15
P & O Steam Navigation Co. v. Secretary of State for India (1911)ILR 38CAL230
16
Kasturi Lal v. State of Uttar Pradesh 1965 AIR 1039

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5. JUDICIAL INTERPRETATIONS IN COMMON LAW-

England:

 Adams v. Naylor (1946)17: This case reinforced sovereign immunity, holding that
certain acts (e.g., wartime requisitions) cannot result in liability for the government.

India:

The Indian judiciary adopted and expanded upon the common law distinction, emphasizing a
balanced approach:

1. State of Rajasthan v. Vidyawati (1962)18: The State was held liable for negligence
in a non-sovereign function (a government driver's reckless driving).

2. Kasturi Lal v. State of Uttar Pradesh (1965) 19: The State was immune for wrongful
acts during a sovereign function (police actions during investigation). When the police
officers seized the appellant's jewellery, they were acting within the extent of their
duties. When the police officers misplaced the jewellery, they were carrying out a
sovereign function and the State of Uttar Pradesh is not liable for tortious conduct
performed by its servants when performing a sovereign function.

United States:

 Federal Tort Claims Act (1946)20: The U.S. abolished absolute sovereign immunity
and allowed claims for negligence in non-sovereign functions, but retained immunity
for discretionary functions (e.g., policy decisions).

6. PRACTICAL IMPLICATIONS AND CHALLENGES -

1. Governance and Accountability: The distinction ensures that governments can

exercise core powers (like defense or legislation) without fear of constant litigation,
17
Adams v. Naylor, (1946) 2 All (ER) 241
18
State of Rajasthan v. Vidhyawati, 1962 AIR 933.

19
Kasturi Lal Ralia Ram Jain v. State of U.P., A.I.R. 1965 S.C. 1039.
20
Federal Trade Commission Act (1946)

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 while also holding them accountable for administrative and commercial activities.

2. Blurring Lines: In modern governance, many activities combine sovereign and non-
sovereign elements. For example, disaster management involves both policymaking
(sovereign) and relief delivery (non-sovereign).

3. Litigation Concerns: Courts often face challenges in classifying functions, especially

in cases where government actions straddle both categories.

4. Reform Trends: Jurisdictions worldwide are moving toward a model that balances
immunity and accountability, allowing claims in cases of gross negligence or human
rights violations, even for certain sovereign acts.

EVOLUTION OF STATE LIABILITY IN INDIAN JURISPRUDENCE

The development of tortious liability in India has been shaped by landmark judgments that
have progressively expanded the scope of state accountability. Below are listed some cases
that significantly helped in the process -

1. STATE OF RAJASTHAN V. VIDYAWATI (1962)21

This case further established the principle of state liability for negligent acts of employees
in non-sovereign functions.

 Facts: A government jeep, driven negligently by a temporary employee, caused the

death of a pedestrian.

 Judgment: The Supreme Court ruled that the state was vicariously liable for the
tortious acts of its employees when performed in the course of their employment,
provided the acts were not part of sovereign functions. This judgment reinforced the
idea that the state could be held accountable like any other employer.

21
State of Rajasthan v. Vidhyawati, 1962 AIR 933.

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2. NILABATI BEHERA V. STATE OF ORISSA (1993)22

This case linked tortious liability with constitutional rights, introducing compensation
under public law for violations of fundamental rights.

 Facts: A young man died in police custody due to custodial violence. His mother filed
a writ petition under Article 32 of the Constitution.

 Judgment: The Supreme Court awarded compensation to the petitioner, holding that
the state was liable for the violation of the deceased's right to life under Article 21.
The court emphasized that sovereign immunity could not be invoked to shield the
state from liability for fundamental rights violations.

4. RUDAL SHAH V. STATE OF BIHAR (1983)23

This case addressed state liability for unlawful detention and violations of fundamental
rights.

 Facts: Rudal Shah was unlawfully detained for 14 years after being acquitted of
criminal charges. He filed a habeas corpus petition seeking compensation for his
illegal detention.

 Judgment: The Supreme Court held that the state was liable for the violation of
Shah's fundamental rights under Article 21 and awarded monetary compensation. This
case established the precedent for granting compensation as a remedy for
constitutional rights violations.

LIABILITY FOR VIOLATION OF FUNDAMENTAL RIGHTS

1. TORTIOUS LIABILITY AND FUNDAMENTAL RIGHTS

Tortious liability in India traditionally a doctrine developed in common law has evolved to
include actions by the state that infringe on constitutional rights. When the state, or its
apparatus, commits a wrongful act, it not only exposes itself to a traditional claim for

22
Nilabati Behra v. State of Orissa A.I.R. 1993 SC 1960

23
Rudal Shah v. State of Bihar, A.I.R. 1983 SC 1086

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damages but also to claims based on the violation of fundamental rights. Let’s explore how
this liability intersects with Articles 14, 19, and 21.

1. Article 14 – Equality Before the Law24

 Core Principle: Article 14 guarantees equality before the law and equal protection of
the laws. It mandates that state actions must be administered fairly and without
arbitrariness.

 Intersection with Tortious Liability:

 When government actions result in discrimination or arbitrary treatment (for

instance, via negligent policies or unintentional harm in public service
delivery), individuals affected can claim that such actions violate the equal
protection principle.

 Tort claims arising from negligent or wrongful acts can be amplified by an

Article 14 violation, ensuring that states remain accountable for decisions that
compromise the uniform application of the law

2. Article 19 – Protection Of Certain Freedoms 25

 Core Principle: Article 19 secures several freedoms (such as freedom of speech,

assembly, and movement) from unreasonable restrictions by the state.

 Intersection with Tortious Liability:

 Although most tortious liability claims are more directly linked with rights
safeguarding life and liberty, there are instances where the state’s actions—if
they restrict these fundamental freedoms in an arbitrary manner—can also give
rise to tort claims.

 For example, a state order or policy that unjustifiably curtails free speech or
assembly may lead to claims for damages if such restrictions cause
demonstrable harm.

24
Indian Constitution Article 14
25
Indian Constitution Article 19

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3. Article 21 – Right to life26

 Core Principle: Article 21 is the cornerstone of individual rights in India. It

guarantees the right to life and personal liberty, but over time, its interpretation has
broadened considerably. The right to life under Article 21 now subsumes the right to a
decent standard of living, health, and dignified existence.

 Intersection with Tortious Liability:

 State Negligence: When the state or its agents engage in negligent acts (e.g.,
police misconduct, faulty administration of criminal justice, or lapses in public
health services), the violation of Article 21 is often at the center of tort claims.
Cases such as Nilabati Behera v. State of Orissa27 have emphasized that the
failure of the state to protect a citizen’s right to life can trigger compensation.

 Custodial Violence and Unlawful Detention: Incidents of custodial violence

and wrongful detention (such as seen in Rudal Shah v. State of Bihar have not
only been viewed as breaches of personal liberty but are also actionable under
tort law, leading to state liability.

 Medical Negligence in Public Hospitals: When public health institutions fall

short of their duty of care resulting in preventable harm or death the state’s
breach of Article 21 is clear. Here, tortious liability complements
constitutional remedies by awarding damages and mandating systemic
reforms.

ROLE OF PUBLIC INTEREST LITIGATION (PIL) IN ENFORCING

STATE ACCOUNTABILITY

CUSTODIAL VIOLENCE:

26
Indian Constitution Article 21
27
Nilabati Behra v. State of Orissa A.I.R. 1993 SC 1960.

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  Systemic Accountability: PIL’s have been instrumental in bringing to light systemic
issues within law enforcement. When investigations into custodial deaths or abuses
are initiated via PIL, the courts have the authority to direct reforms, order
compensation, and hold officials accountable.

 Judicial Intervention: By using PIL as a vehicle, courts have intervened in cases

where victims or their families had no direct access to litigation due to intimidation or
lack of resources

MEDICAL NEGLIGENCE IN PUBLIC HOSPITALS:

 Ensuring Quality of Care: In instances where public hospitals commit acts of

negligence—resulting in preventable harm—the right to life under Article 21 is
compromised. PILs in these contexts have led to important directives for improving
standards, accountability in public healthcare, and even compensation for affected
individuals.

 Systemic Reforms: Courts have used PILs not only to address individual grievances
but also to mandate broader reforms in healthcare delivery, ensuring that state
institutions adhere to the constitutional mandate of protecting life and personal
dignity.

CHALLENGES AND LIMITATIONS

1. AMBIGUITIES IN DEFINING SOVEREIGN AND NON-SOVEREIGN FUNCTIONS

Blurry Boundaries:

 Hybrid Activities: Modern governance often involves actions that combine both
policy-making (sovereign functions) and administrative or commercial aspects (non-
sovereign functions). For example, while formulating public policy is a sovereign act,
the consequent administration of a public program might follow private-sector norms.
Drawing a clear line between the two can be uncertain and highly context-specific.

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  Dominant Character Analysis: Courts have typically resorted to the "dominant
character" test to decide whether an act is sovereign or non-sovereign. This method,
however, involves subjective judgment—what one court may view as predominantly
administrative, another might see as an exercise of high-order policy. Consequently,
similar cases can yield different outcomes based on judicial perspectives.

 Evolving Government Practices: With the increased involvement of the state in

commercial activities (like public-private partnerships or direct involvement in market
operations), the traditional common-law distinction is challenged. As government
operations diversify, earlier doctrinal lines often fail to capture the complexities of
modern administrative actions.

These ambiguities result in uncertainty regarding when state actions are immune from
liability (sovereign) and when they are subject to review (non-sovereign).

2. DIFFICULTIES IN DETERMINING LIABILITY IN CASES OF NEGLIGENCE OR

MISFEASANCE OF STATE EMPLOYEES

Establishing Vicarious Liability:

 Scope of Employment: One key issue is determining whether the actions of a state
employee fall within the scope of their official duties. If a negligent act is outside
prescribed functions, the state may argue it should not be held vicariously liable. On
the other hand, if the act is close to or mixed with routine administrative behavior,
establishing a clear link to the employee’s official role becomes challenging.

 Proving Causation: Since state activities often involve several layers of decision-
making and multiple actors, attributing a specific injury or loss to the negligent
conduct of a state employee can be complex. The victim must demonstrate that the
harm directly resulted from the negligence and that the employee’s action was closely
connected to their official responsibilities.

 Overlap with Sovereign Functions: In contentious cases, even if negligence is

apparent, the state might claim that the act was part of a sovereign function, thereby
invoking immunity. This becomes particularly problematic if the wrongful act
interfaces with sensitive policy decisions, as courts must then dissect the act’s

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 components to determine its character.

 Hybrid Functionality: When actions embody elements of both sovereign and non-
sovereign activities, courts must undertake nuanced, fact-intensive inquiries. The
difficulty lies in categorizing the act without undermining the inherent discretionary
powers of the state while ensuring accountability for non-discretionary, administrative
misfeasance.

3. CHALLENGES FACED BY VICTIMS IN ACCESSING REMEDIES

Procedural and Evidentiary Hurdles:

 High Burden of Proof: Victims must navigate a rigorous evidentiary process to

establish that the state’s negligence directly caused their losses. Gathering such
evidence can be demanding, particularly when state processes involve opaque
administrative records or when official channels fail to preserve pertinent
documentation.

 Protracted Litigation: Legal challenges against the state often involve lengthy
proceedings. The complexity of proving negligence or misfeasance coupled with
bureaucratic delays results in protracted litigation, which can be both financially and
emotionally draining for victims.

 Limited Compensation: Even when courts rule in favor of the victim, the
compensation awarded might not fully cover the losses or suffering—especially in
cases involving prolonged custodial violence or severe medical negligence. Monetary
awards sometimes fall short of addressing non-economic damages such as loss of
dignity or long-term trauma.

 Institutional Resistance: Victims frequently face resistance from state institutions.

Bureaucratic inertia or political sensitivities might impede effective enforcement of
court orders. In some cases, proactive measures by the judiciary (such as Public
Interest Litigation) are necessary to break through these institutional barriers.

 Access to Justice: Socio-economically marginalized groups often encounter

additional obstacles in seeking redress. Lack of financial resources, legal awareness,

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 or even intimidation by powerful public entities can prevent vulnerable individuals
from pursuing legitimate claims.

SUGGESTIONS FOR REFORMS

1. CLEARER GUIDELINES ON SOVEREIGN IMMUNITY AND STATE LIABILITY

 Codification of Distinctions: Legislatures could introduce detailed guidelines that

explicitly define the limits of sovereign functions versus non-sovereign functions. By
delineating these categories through legislative language, courts and lower
administrative bodies would have more objective criteria when evaluating whether
state actions fall within the purview of immunity or accountability.

 Judicial Guidelines: Establishing uniform judicial guidelines or interpretative

manuals can help reduce ambiguities. These guidelines might detail the "dominant
character" test, evidence thresholds, and case indicator factors—thereby ensuring that
subsequent decisions are consistent and predictable.

 Policy Directives: Government departments could be mandated to adopt internal

standards regarding liability, ensuring that training and operational protocols
emphasize accountability where employees are managing tasks that are non-sovereign
in nature.

2. ESTABLISHMENT OF A STATUTORY FRAMEWORK FOR TORTIOUS LIABILITY

 Modelling on Established Acts: India could consider drafting legislation similar to

the United Kingdom’s Crown Proceedings Act or the United States’ Federal Tort
Claims Act28. Such a statute would:

 Define Scope and Exceptions: Clearly identify the circumstances under

which the state can be held liable, and set out precise exceptions for bona fide
sovereign functions wherein judicial interference should remain minimal.

28
Federal Trade Commission Act (1946)

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  Procedural Mechanisms: Provide a procedural framework for filing claims,
establishing clear timelines and procedures for evidence submission, and
creating a dedicated forum or tribunal for state liability cases.

 Vicarious Liability: Establish standards for vicarious liability, outlining how

negligence or misfeasance by state employees is connected to the state’s
responsibility. This would create a transparent and predictable process,
reducing the strain of protracted litigation on victims.

 Centralized Compensation Fund: A statutory framework could also include

provisions for a governmental or quasi-governmental compensation fund. Such a fund
would offer interim relief while legal claims are processed, ensuring that victims
receive timely financial support for damages sustained.

3. ENHANCING QUICKER AND MORE ACCESSIBLE REMEDIES FOR CITIZENS

 Streamlined Litigation Processes: Reform measures should advocate for the

creation of specialized tribunals or fast-track courts for cases involving state liability.
These bodies would be empowered to resolve disputes within a set timeframe,
reducing delays and alleviating the burden on traditional judicial systems.

 Reduced Procedural Hurdles: Simplifying the filing process for claims—especially

through amendments to procedural rules—would help remove barriers faced by
economically or socially marginalized groups. For example, a user-friendly, online
filing system and minimal administrative fees could enable greater public access to
the legal system.

 Increased Transparency: Mandated disclosure practices regarding government

operations and investigations into alleged tortious acts can help victims gather
evidence more efficiently. With improved transparency, both the accountability of
state actions and the victims' ability to seek redress are enhanced.

 Public Interest Litigation (PIL) Support: Expanding the role of PIL in cases of
state negligence (such as custodial violence or medical negligence) can ensure
collective redress. Courts should continue to welcome PIL as a means to hold state

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 agencies accountable for systemic issues while securing tailored remedies for the
public at large.

CONCLUSION

Holding the state accountable through tortious liability is essential for upholding the rule of
law and ensuring that citizens receive redress when harmed by governmental negligence or
misfeasance. By imposing liability on the state for wrongful acts committed in its non-
sovereign functions, the legal system reinforces that public authorities are not above the law,
thereby promoting transparency and responsible governance.

At the same time, it is crucial to strike a balance between maintaining the efficiency of state
operations and protecting individual rights. While the state must retain immunity for core
sovereign functions—such as national defense and legislative policymaking—to efficiently
manage public affairs, this immunity should not cover actions that infringe upon the
fundamental rights of citizens. A balanced approach ensures that while public administration
remains robust and unhampered by excessive litigation, accountability mechanisms are in
place to prevent abuse and remediate injustices when they occur.

Looking ahead, the evolving nature of state liability in India promises to address the
complexities of modern governance. As public functions increasingly intersect with
commercial activities and technology-driven processes, both legislative reforms and judicial
interpretations will likely refine the contours of state accountability. This forward movement
will contribute to a more equitable system where the state operates efficiently, yet remains
answerable for actions that adversely affect the lives and rights of its citizens.

BIBLIOGRAPHY

STATUTES

1. The Customs Act , 1962, No. 52 , Act of parliament (1963), India

2. The Limitations Act , 1963, No. 36 , Acts of Indian parliament (1963) , India

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WEBSITES

1. https://www.legalserviceindia.com/legal/legal/article-14726-liability-of-the-state-tort-
actions-and-legal-accountability.html
2. www.benchnotes.in
3. wikipedia

BOOKS

1. Akshay Sapre, Ratanlal & Dhirajlal: The Law of Torts, Lexis Nexis, 2021

2. R.K. Bangia, The Law of Torts, Allahabad Law Agency, 2023

3. A.K. Jain, Law of Torts, Ascent Publications, 2012

CONSTITUTION

1. Indian constitution

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