ADMINSTRATIVE LAW

EXTENT OF LIABILITY OF THE GOVERNMENT IN TORTS.

Table of Contents
 Abstract
 Introduction
 Aim of Study
 Liability of administration in tort
o Respondeat Superior (Let the principal be liable)
o Qui-Facit per Alium Facit per se (He who acts through
another does it himself).
o Compensation by State
o Pertinent case laws
 Pre-Constitution judicial decisions
 Post-Constitution judicial decisions
 Conclusion
 Bibliography

ABSTRACT:
This assignment talks about the liability of the state in tort
under administrative law.
The term Administration‟ is used here synonymously with
“state‟ or “Government‟.

To what extent the Administration would be liable for the torts

committed by its servants is a complex problem especially in
developing countries with ever widening State activities.

The liability of the government in tort is governed by the

principles of public law inherited from British Common law and
the provisions of the Constitution.

It mainly focuses on the recognition of the liability and

providing compensation to the citizens especially by the
judiciary in the event of legal injury. The scope of the paper is
limited to assessing the extent of tortious liability before the
Constitution and the gradual changes in judicial approach in
post Constitutional era.

The Hypothesis mentioned is the liability of the state is

considered or not considered to be a tortious liability that
undergoes major changes and new dimensions of liability have
been explored by the

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courts to afford remedies and compensate the victims of state
action.

The paper deals about the tortious liability for the state and it
explains the pre-constitutional and post-constitutional judicial
Decisions with case laws and it also explains the before
commencement and after Commencement of the constitution
regarding the sovereign and non-sovereign functions.

Finally, it deals with the doctrine of public accountability in the

field of judicial and personal liability in comparison with both
English and Indian laws. It also deals with the statute that
bounds by the state, under that it includes the comparison with
both English and Indian laws.

INTRODUCTION-:
Tortious Liability emerges from the breach of an obligation
essentially settled by the law: this obligation is towards persons
by and large and its breach is redressable by an activity for
Unliquidated damages. The torts submitted by people against
another were perceived in custom based law and the saying
'Ubi Jus Ibi Remedium' pushed the development of the Law of
Torts more than ever. Under the Roman law, the state was not
liable in torts towards its subjects, since it was a Sovereign.

It was viewed as a characteristic of Sovereignty that a State

couldn't be sued in its own courts without its assent. So also, in
England, the Crown delighted in susceptibility from tortious
liability and the proverb 'The King can't take the blame no
matter what' won.

Neither a wrong could be ascribed to the King or the

Government nor might it be able to approve any off-base. In the
post constitutional time, the approach of Welfare State logic
prompted the all-overrunning State mediation, diminishing the
refinement amongst open and private capacities. The welfare
measures and orders duplicated and the probability to singular
damage expanded.

The State was in every way that really matters an enterprise

total along these lines making it a juristic person acting through

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its authorities and operators suable under law. The courts made
another open law cure which made the State liable for wrongs
perpetrated over the span of activity of non-sovereign
capacities. The insusceptibility was limited to the conventional
elements of State like enactment, organization of equity, war,
making of settlements and wrong doing anticipation.

The subject of State Liability in torts has accepted

extraordinary significance today. The very idea of welfare state
imagines that state deals with the natives and sets up an only
connection between the privileges of the individual and the
obligations of the State. While these obligations have
expanded, the expansion in State exercises has prompted a
more noteworthy effect on the subjects. Article 12 of the Indian
Constitution characterizes 'State'. As per this article, State
implies the Union, the State government and the Local
Authorities. Subsequently the state is both the supplier and
defender. The vicarious liability of state for the demonstrations
of its worker abuse of energy by them or their carelessness
expect importance especially with regards to extending extent
of central and lawful rights. This circumstance requires a
satisfactory system for assurance of State liability and granting
remuneration to the casualty in the occasions of wrongs
conferred against them. The progression of the law in England
through the Crown Proceedings Act 1947 and in U.S.A.
concretization of liability by the Tort Claims Act, 1946 couldn't
be overlooked in this regard.

Aim of the Study:

To know about the obligations of State in proper functioning of
the state in its judicial proceedings.

ASSISGNMENT QUESTION
Extent of liability of the government in torts.

OBJECTIVES:

● To identify the provisions available for the Doctrine of liability.

● To analysis whether State is bound by Statute.
● To find the Doctrine of Public Accountability in matter of
public concern.

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TORTIOUS LIABILITY OF THE STATE-:

Article 300 of the Constitution sets out the convoluted liability
of Indian government. It peruses:
“The government of India may sue or be sued by the name of
Union of India and the Government of a State may sue or be
sued by the name o the State and may, subject to any
provisions 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.
This is anyway subject to any law made by the Parliament or a
State Legislature In this way this makes the liability co-end with
that of East India Company in light of the fact that the liability
of the Dominion of India before the Constitution was same as
that of Secretary of State for India under section 176 of
Government of India Act 1935 and the Government of India Act
1915 made the liability of the Secretary of State for India same
as that of East India Company preceding Government of India
Act 1858. In this way the situation of the tortious liability was
solidified at 1858.
The company administered in a double limit Commercial and
Sovereign. When it started activities in India, the company was
absolutely a trade body. Bit by bit, it gained domains and
furthermore the sovereign powers to make war and peace and
raise armed forces. Since it was an independent company not
being the hireling or specialist of the British Crown, the
resistance delighted in by the Crown was never reached out to
it. In its sovereign limit, it was absolved from any tortious
liability. In accordance with this rule after autonomy, the
invulnerability of the State proceeded in a few regards i.e.
sovereign powers.

The Doctrine of Vicarious Liability depends on 'social

comfort and unpleasant equity'.

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English law: – In England, under precedent-based law, outright
insusceptibility of the Crown was acknowledged couldn't be
sued in tort for wrongs conferred by its hirelings in their
business.

The administer depended on the notable maxim "the King can't

be blamed under any circumstance". In 1863, in Tobin v. R. the
court watched "if the Crown were at risk in tort, the rule (the
King can't take the blame no matter what) might have
appeared to be insignificant". Be that as it may, with the
expansion of governmental capacities, the invulnerability stood
to the Crown in convoluted liability turned out to be
inconsistent with the requests of equity.

In Adams v. Naylor the Dicey gave a crazy illustration. "On the

off chance that the Queen were herself to shoot the P.M through
the head, no court in England could take comprehension of
act".

The significance of maxim would signify "king has no lawful

energy to do wrongs." But the English Law never prevailing with
regards to recognizing the King's two limits individual
political. The time had come to nullify the general resistance of
the crown in tort and in 1947 the Crown Proceeding Act was
enacted. This Act put the Government in an indistinguishable
position from a private person.

Indian Law:
A. General - So far as Indian law is concerned, the maxim 'the
king can't be blamed under any circumstance' was never
completely acknowledged. Total insusceptibility of the
Government was not perceived in the Indian lawful framework
preceding the commencement of Constitution and in various
cases the Government was held subject for convoluted acts of
its workers.

B. Established Provision - Under Article 294 (4) of the

constitution, the liability of Union Government or a state
Government may emerge 'out of any contract or something
else.

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The word generally recommends that the said liability may
emerge in regards of convoluted acts too.

Under article 300 (1), the degree of such liability is settled. It

gives that the liability of the Union of India or State
Government will be same as that of Dominion of India and the
Provision before the commencement of the Constitution.

DOCTRINE OF PUBLIC ACCOUNTABILITY-:

The idea of open responsibility involves imperative open
concern. All the three organs of the government-lawmaking
body, official and legal are liable to open responsibility.

A. Doctrine Explained: It is settled law that every single optional

power must be practiced sensibly and in bigger open intrigue.
In Henley v. Lyme Corporation Best C.J stated: – "Now I take it to
be impeccably clear, that if an open officer, manhandle his
office, either by an act of exclusion or commission and the
outcome of that is damage to an individual an action might be
kept up against such open officer."
B. Personal liability: - A rupture of obligation gives ascend out in
the open law to liability Which is known as "misfeasance in
broad daylight office". Exercise of energy by priest and open
officers must be for open merchandise and to accomplish
welfare of open on the loose. Wherever there is mishandle of
energy by an individual, he can be held obligated.
Qui-Facit per Alium Facit per se (He who acts through another
does it himself).
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.

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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 civil 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 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

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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.

Pre-Constitution judicial decisions

Peninsular and Oriental Steam Navigation Company v.
Secretary: The rule that was deduced in this case states that
the East India Company(State) is excluded from the risks
arising due to any action taken in the operation of sovereign
capacities. It drew a significantly strong distinction between
state sovereign and non-sovereign elements.

Secretary of State v. Hari Bhanji: The Madras High Court ruled

that the invulnerability of the State should be kept to state
activities. The decision did not go beyond state actions in the P
and O Cases while providing representations of circumstances
where the invulnerability was available.

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Post-Constitution judicial decisions

State of Haryana v. Santra: It was held that there was
negligence on the state responsibility standards. Henceforth,
when the negligence occurred, it added up to behave in the
absence of integrity, therefore the State could not use the
defense of sovereign resistance. It was also held that
negligence by professionals who have an obligation cannot
escape the responsibility by asserting the solicitor’s assent
guard.

State of Rajasthan v. Vidyawati: The case dealt with whether

the State was at risk for its hireling’s tortious act – The Court
held that the State’s liability to its worker’s tortious act within
the scope of its business and to work in that capacity was
similar to that of some other manager.

Kasturi Lal v. The State of UP: The decision for this situation was
given holding that the act, which offered to ascend to the
present claim for damages, was presented throughout its
business by the respondent’s representative. That work had a
place with a class of sovereign power evacuating any State-
related liability.

In Kesoram Poddar v. Secretary of State for India, the Supreme

Court’s decision created a significant state immunity
requirement in tort based on the principles of sovereign and
non-sovereign duties. It decided that immunity can only be
claimed for State action if the act in question was done in the
course of exercising sovereign functions.

In the case of Union of India v. Harbans Singh, it was deduced

that damages can’t be recovered when a man was assassinated
due to an obligatory military driver’s rash and careless driving
of a military truck, because it was a sovereign capacity. In the
case of Secretary of State v.Cockraft, the offended party was
hurt by the reckless removal of a pile of rock from the military
street he was walking over. The lawsuit against the government
was not viable in the light of the fact that the military and
military street maintenance were a sovereign rather than a
private capacity.

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CONCLUSION:
All actions of state and its instrumentalities must be toward the
targets set out in the constitution. Each progression of
government ought to be toward fair conventions, social and
financial improvement and open welfare. The established court
practices energy of judicial survey with limitation to guarantee
that the experts on whom such power is endowed under the
lead of law

practice is truly, equitably and for the reason for which it is

planned to be worked out. Sovereign insusceptibility as a
safeguard might have been, consequently, never accessible
where
the State was engaged with business or private undertaking
nor it is accessible where its officers are blameworthy of
meddling with life and freedom of a native not justified by law.

In both such encroachments the State is vicariously subject and

bound, naturally, legitimately and ethically, to remunerate and
repay the wronged individual. The teaching of sovereign
invulnerability has no importance in the present-day setting
when the idea of sovereignty itself has experienced radical
change.

'Sovereignty' and "acts of State" are in this manner two unique

ideas. The previous vests in a man or body which is free and
preeminent both remotely and inside while last might be act
done by a delegate of sovereign inside the points of
confinement of energy vested in him which can't be addressed
in a Municipal Court. The idea of energy which the Company
delighted in was appointment of the "act of State". An activity
of political power by the State or its delegate does not outfit
any reason for action for documenting a suit for damages or
pay against the State for negligence of its officers.

Bibliography

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